1. The above original petition has been filed by the petitioner in E.A.Nos.365 of 2009 and 366 of 2009 in E.P.No.100 of 1999 in O.S.No.199 of 1995 on the file of the Principal Sub Court, Thiruvananthapuram. E.A.No.365 of 2009 was an application for condoning the delay for a period of four months and 27 days in restoring the execution petition, E.P.No.100 of 1999, and an application E.A.No.1662 of 2007 moved for delivery of decree schedule property, both of which had been dismissed for default on 28.11.2008. E.A.No.366 of 2009 was for restoring E.P.No.100 of 1999 to the file of the court. The application for condonation of delay, E.A.No.365 of 2009, was dismissed by the learned Sub Judge, vide Ext.P5 order holding that Section 5 of the Limitation Act is not applicable to execution proceedings. The application for condonation to restore the execution petition dismissed for default beyond the period of 30 days after its dismissal, as prescribed under Rule 106 of Order XXI of the Code of Civil Procedure, for short, the ‘Code’ was held to be not entertainable. In the light of Ext.P5 order, E.A.No.366 of 2009 seeking restoration of the execution petition and also the application referred to above, both of them were dismissed VIDE Ext.P6 order. Propriety, legality and correctness of Exts.P5 and P6 orders are challenged in the original petition invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India.

2. The case of the petitioner is thus: The petitioner’s father/plaintiff obtained a money decree in O.S.No.199 of 1995 against the respondents. The above plaintiff/decree holder had passed away on 04.08.2009. The decree passed by the trial court had been resisted by way of an appeal, but, it was confirmed with some modification allowing the decree holder/plaintiff to recover an amount of Rs.3 lakhs with interest of 12% per annum from 1.61994 till date of decree and future interest at the rate of 6% per annum on the principal amount till realisation. The decree holder moved an execution petition E.P.No.100 of 1999 and got attached an item of immovable property of the judgment debtor. Ext.P1 is the copy of the execution petition. The property attached was brought to sale and it was purchased by the decree holder in auction. After confirmation of the sale and issue of sale certificate, the decree holder filed E.A.No.1662 of 2007 on 20.11.2007 for delivery of the property. Ext.P2 is the copy of that application. The application for delivery and also the execution petition were dismissed for default on 28.11.2008. The decree holder was not aware of the dismissal of the aforesaid petitions since he was completely bed ridden. He executed a power of attorney in favour of the petitioner, his son, to continue with the execution proceedings and only when the power of attorney visited the advocate’s office, he got knowledge of the dismissal of the petitions. Thereupon two applications, Ext.P3 application for condoning the delay and Ext.P4 application for restoring the execution petition and also the application moved for delivery of the property were filed, but both of them were dismissed by the execution court under Exts.P5 and P6 orders respectively.

3. The learned counsel for the petitioner argued before me that the dismissal of Exts.P3 and P4 applications under the impugned orders was improper, illegal and unsustainable. Rules 105 and 106 of Order XXI of the Code have no application to the facts of the case, and as such, the execution court had gone wrong in holding that the application for restoration should have been moved within thirty days prescribed under sub rule (3) of Rule 106 of Order XXI of the Code, is the submission of the counsel. The applications had been dismissed for default in the present case for non-taking of steps, which, according to the counsel, cannot be construed as one fixed for hearing of the application for delivery and the execution petition. The orders of dis