The 1st judgment-debtor in a decree obtained by the 1st respondent, the South Indian Bank impugns in this Writ Petition filed under Article 227, Exts.P1 and P2 orders passed by the execution court. Ext.P1 is the common order passed on execution applications for setting aside ex parte order and for condonation of delay. Ext.P2 is the order passed on an execution application filed by the signatory to this Writ Petition seeking his impleadment as the next friend of the 1st judgment-debtor.

2. I have heard the submissions of Mr.T.Krishnanunni, learned counsel for the petitioner and also those of Sri.K. Prabhakaran, learned Standing Counsel for the 1st respondent Bank.

3. Sri.T.Krishnanunni would flay both Ext.P1 and Ext.P2. As regards Ext.P1, the learned counsel would submit that the learned Subordinate Judge was not justified in dismissing the applications filed by the petitioner on the ground of delay. There really was no delay and the condonation application was filed only by way of abundant caution. According to the learned counsel, ex parte orders contemplated under Rule 105(3) of Order XXI CPC are orders finally disposing of the execution petition and not orders setting the judgment debtor ex parte at some earlier stage of the execution proceeding. Period of limitation prescribed by Rule 106(3) of Order XXI applies only in respect of ex parte orders finally disposing of the execution proceeding. Learned counsel drew a parallel between applications filed on the original side under Order IX Rule 13 CPC and those filed under Order IX Rule 7. Counsel submitted that the period of limitation applies only in respect of applications filed under Order IX Rule 13 and not in respect of applications filed under Order IX Rule 7. Counsel would further submit that at any rate the petitioner should be permitted to participate in the further proceedings in the Execution Petition.

4. As regards Ext.P2, Mr.Krishnanunni would rely on the judgments of this Court in Balakrishnan v. Kalliyani [AIR 1957 Kerala 51] and in Syed Hassan Baffakki Thangal & others v. Kalliath Thazha Chirutha & others [AIR 1988 Kerala 160] and submit that it was obligatory under Order XXXII Rule 15 CPC that the court conducted an enquiry as to whether the petitioner had become incapable due to any mental infirmity of protecting his interest in the litigation.

5. Sri.K.Prabhakaran, Standing Counsel for the decree-holder-Bank, resisting the submissions of Mr.Krishnanunni would submit that having filed an application for condonation of delay, it is futile for the petitioner to contend that there was no delay. The position of law is trite that Section 5 of the Limitation Act does not apply to execution applications and therefore Ext.P1 order is perfectly in order. As regards Ext.P2, the learned Standing Counsel would support Ext.P2 on the various reasons stated in Ext.P2 itself. No material has been placed before the court below to prove that the petitioner has any mental ailment or that he is undergoing treatment for several years. The present move is a collusive affair between the petitioner and the 2nd judgment-debtor, the petitioner's own wife to protract the execution proceedings to the maximum extent possible so that the decree-holder Bank can be prevented from securing the fruits of the decree.

6. It is difficult to accept Mr.Krishnanunni's arguments in respect of Ext.P1 order. It is true that there is distinction between applications which are filed under Order IX Rule 13 and those filed under Order IX Rule 7, in that while the former seeks cancellation of decrees finally disposing of suits, the latter seeks cancellation of only orders setting the applicant ex parte, thus preventing him from participating in further proceedings in the suit. It is also true that unlike applications under Order IX Rule 13, there is no article in the Limitation Act providing any specific period of limitation for applications under Order IX Rule 7. But Mr.Krishnanunni's argument th