K.T. Sankaran, J.

1. The petitioner, the decree holder in O.S. No. 716 of 1994 on the file of the Court of the Principal Sub Judge, Kollam, filed E.P. No. 399 of 2006 on 8.12.2006 for realisation of the decree amount of Rs. 1,71,347/-. The Execution Petition was posted for taking steps on 1.3.2008. On that day, the counsel for the decree holder was not present. Steps were also not taken. The executing court dismissed the Execution Petition on 1.3.2008 for default. On 21.6.2008, the decree holder filed E.A. No. 370 of 2008 under Rule 106 of Order XXI of the Code of Civil Procedure. That application was filed beyond 30 days as provided under sub-rule (3) of Rule 106 of Order XXI of the Code of Civil Procedure. The court below dismissed E.A. No. 370 of 2008 on the ground that the application was not filed within time and that Section 5 of the Limitation Act is not applicable to any proceeding under Order XXI of the Code of Civil Procedure. The first judgment debtor was the brother of the decree holder. He died pending Execution Petition. His wife is the second judgment debtor. Their children were sought to be impleaded as supplemental respondents. The prayer in the Execution Petition was to arrest and detain the first judgment debtor in civil prison and also to attach and sell the movable and immovable properties belonging to the judgment debtors.

2. The decree holder had filed E.P. No. 54 of 1999 on an earlier occasion and that Execution Petition was dismissed for default on 30.9.2002. The present E.P., namely, E.P. No. 399 of 2006 was filed about 4 years thereafter.

3. In E.P. No. 399 of 2006, the court directed the decree holder to take steps to serve notice on the additional respondents sought to be impleaded. The Execution Petition was posted to 1.3.2008 for taking steps. On that day, the Execution Petition was dismissed for default.

4. Sri. R. Azad Babu, the learned counsel appearing for the petitioner, submitted that the executing court was not justified in dismissing E.A. No. 370 of 2008 on the ground that the delay could not be condoned. The counsel submitted that the application was really under Section 151 of the Code of Civil Procedure. Rule 106 of Order XXI would not apply since the Execution Petition was not posted for hearing and the dismissal was not on the ground of non appearance of the petitioner on the day fixed for hearing. The learned counsel relied on the decision of the Kerala High Court in Radhakrishnan v. State of Kerala (2006 (1) KLT 28) and Khoobchand Jain & Anr. v. Kashi Prasad & Ors. (AIR 1986 M.P. 66) and in Deo Narayan Goala & Ors. v. Jagadish Pandit (AIR 1985 Gau. 49) in support of his contention.

5. Sri. B. Suresh Kumar, the learned counsel for the respondents submitted that E.A. No. 370 of 2008 was filed under Rule 106 of Order XXI C.P.C. An application under Rule 106should be filed within 30 days as mentioned in sub-rule (3) thereof. Section 5 of the Limitation Act specifically excludes the provisions of Order XXI of the Code of Civil Procedure from its purview and therefore, the executing court had no jurisdiction to condone the delay in filing the application under Rule 106 of Order XXI C.P.C. The learned counsel relied on the decisions of the Supreme Court in Damodaran Pillai v. South Indian Bank Ltd. (2005 (4) KLT 192 (SC)) and Vijayamma v. Santhakumari Amma (2008 (2) KLT SN 17 (C. No. 19).

6. In Radhakrishnan v. State of Kerala (2006 (1) KLT 28), a learned Single Judge of this Court (Justice V. Ramkumar) dealt with a case where the Execution Petition was posted to a particular date with a direction to put up with the back records. Due to non appearance of the decree holder, the Execution Petition was dismissed for default. An Application under Rule 106(1) of Order XXI C.P.C. was filed. There was delay in filing the application. The executing court allowed the application and restored the Execution Petition. Dismissing the Writ Petition filed by the judgment debtor, it was held thus:

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