Petition for condonation of delay not allowed.

COMMON ORDER:

Both the Civil Revision Petitions are filed against the common order in E.A.Nos.72 of 2003 and 71 of 2003 respectively in E.P.No.178 of 2001 in O.S.No.6 of 1992 on the file of the Principal Sub Court, Thenkasi. The parties are described as per their rankings in the suit.

2. The first respondent Selvabakiyam filed O.S.No.6 of 1992 on the file of the Sub Court, Thenkasi against her son, Ponnu Pandian, the first defendant and her daughters, the defendants 2 and 3 and 2 others claiming partition of one-third share. The suit was resisted and after contest, preliminary decree for partition was passed on 8.9.1997. Pursuant to the preliminary decree, final decree was also passed on 14.7.2000. The plaintiff Selvabakiyam filed Execution Petition in E.P.No.178 of 2001 on 19.10.2001. In the Execution Petition, respondents 2 to 4, namely defendants 2 to 4 remained absent and were set ex parte. The first defendant, namely, the revision petitioner entered appearance on 2.4.2002 and took time to file counter till 10.12.2002 and on that date, since no counter was filed, delivery was ordered by 31.12.2002.

3. The revision petitioner filed E.A.No.72 of 2003 to set aside the ex parte order dated 10.12.2002 in E.P.No.178 of 2001 and E.A.No.71 of 2003 to condone the delay of 23 days in filing such petition by stating in the affidavit of petitions that he was doing business in Kerala and only on 20.1.2003 he came to know about the ex parte order and on contact his advocate, his advocate informed that since he did not file counter, he was set ex parte. After obtaining copy of necessary papers relating to O.S.No.6 of 1992 from Tirunelveli District Court, a counter has been prepared in which there has been delay of 23 days in filing the petition to set aside ex parte order dated 10.12.2002. Therefore, the revision petitioner filed both the petitions.

4. The above petitions were resisted by the plaintiff by filing counter. It is stated that only to delay the proceedings, the petitions have been filed. It is further stated in the counter that after the revision petitioner was set ex parte on 10.12.2002 for not filing counter, delivery was ordered and the bailiff when went to the suit property to execute the delivery order, the bailiff was prevented by the revision petitioner and a report was also submitted by the bailiff. Therefore, it is untrue that the first defendant, viz., the revision petitioner came to know about the ex parte order passed against him only on 20.1.2003. The reasons for not filing the petitions immediately on coming to know admittedly on 20.1.2003 are not acceptable. The petitions were also challenged on the ground that the petitions filed to condone the delay in filing the petition to set aside the ex parte order are not maintainable as per Limitation Act 36/1963. Further, as per counter it is also stated that just to defeat the right of the plaintiff in obtaining the fruits of the decree, both the petitions were filed.

5. The Executing Court after considering the arguments advanced and after considering the case of both parties, ultimately dismissed both the petitions that the petition in E.A.No.71 of 2003 filed under Section 5 of the Limitation Act to condone the delay is not maintainable and that there is no satisfactory explanation to set aside the ex parte order dated 10.12.2002 in the Executing Court. Both the orders were challenged in these Civil Revision Petitions.

6. The point for determination is as to whether there is any ground to interfere with the common order passed by the Court below.

7. The learned counsel for the revision petitioner made the following submissions. It is argued that though Section 5 of the Limitation Act bars an application to condone the delay in execution proceedings, but proviso to Rule 105 of Order XXI of Civil Procedure Code empowers the Court to condone the delay. The learned counsel also brought to the notice of this Court the amendment of this Court by inserting the pro