The questions raised for a decision in this proceeding are whether, as in the case of an order as provided under Rule 6(1)(a) of Order IX of the Code of Civil Procedure (for short, “the Code”) that the suit be heard exparte the executing court is required to pass an order that the application be heard exparte on the judgment debtor not appearing in spite of service of notice and whether the period of limitation prescribed under Sub-rule (3) of Rule 106 of Order XXI of the Code is to be reckoned from the date on which judgment debtor is declared absent or, the executing court passes order on any application, in the execution proceeding in the absence of the judgment debtor?

2. A resume of the facts necessary for the decision of the questions are:

Respondent obtained an exparte decree for recovery of money from the petitioner in O.S.No.47 of 2000 of the court of learned Sub Judge, Neyyattinkara and in the year, 2001 he launched execution against petitioner by filing E.P.No.9 of 2001. Respondent requested personal execution against petitioner. The execution court passed an order that petitioner has no means hence no warrant could be issued as provided under Rule 40 of Order XXI of the Code. Respondent challenged that order in this Court in C.R.P.No.521 of 2004 and by order dated 23.11.2004 this Court confirmed the finding of the executing court but with a rider that in case petitioner come by means, it is open to the respondent to proceed against him personally. Thereafter respondent got the amount in the provident fund of petitioner attached. Petitioner challenged that order in this Court W.P.(C) No.38234 of 2007. The Writ Petition was allowed, the order was set aside and the matter was remitted for fresh decision. The executing court held that the amount in the provident fund of petitioner could not be attached in view of the bar under Sec.60 of the Code. Respondent requested to issue notice to the petitioner under Rule 37 of Order XXI of the Code alleging that petitioner has acquired means sufficient to satisfy the decree but has willfully not paid the amount due. On that request notice was issued to the petitioner directing him to appear in the executing court on 05.02.2010. Petitioner did not appear in the executing court on that day though he was served with the notice. Executing court passed order on the same day declaring petitioner exparte. Petitioner also filed E.A.No.156 of 2010 to set aside the exparte order against him. Petitioner also filed E.A. No.296 of 2010 for review of the order dated 05.02.2010 declaring him exparte in the execution proceeding and E.A.No.297 of 2010 to condone the delay. In the meantime petitioner filed Ext.P11, objection to Ext.P7, affidavit of the respondent as regards his means. The executing court by Ext.P12, order dated 14.06.2010 dismissed E.A.No.156 of 2010 while E.A.Nos.296 and 297 of 2010 were dismissed as per Exts.P13 and P14, orders dated 27.09.2010. That was followed by the executing court passing Ext.P15, order the same day that warrant be repeated to the petitioner for his arrest with Police assistance. Exts.P12 to P15, orders are under challenge.

3. Learned counsel for petitioner contends that unlike Rule 6(1)(a) of Order IX of the Code where the court is empowered to pass an order that the suit be heard exparte when it is satisfied that summons has been duly served on the defendant but he does not appear, Sub-rule (3) of Rule 105 of Order XXI does not empower the executing court to pass an order that the application be heard exparte. Instead, the said provision only requires the court to hear the application (in execution) exparte and pass such orders as it thinks fit if it is satisfied that in spite of notice the opposite party does not appear. According to the learned counsel, this is evident from Sub-rule (3) of Rule 105 of Order XXI and Rule 6(1)(a) of Order IX of the Code. It is the further contention of learned counsel that therefore, the period of limitation p