Section 5 of the Limitation Act, 1908 continues to apply to applications under Order XXI, Rule 105(1) of the Code of Civil Procedure, notwithstanding its repeal and re-enactment in the present Limitation Act, 1963.

These revision petitions are directed against the orders passed in FA. No. 43 of 1986 in

F.A. No. 49/84 in E.1. No. 4 of 1983 in O.S. No. 512/ 1979 on the file, of Sub Court, Vellore and E.A. No. 46 of 1986 in E.A. No. 51 of 1984 in E. P. No. 5 of 1983 in O.S. No. 516 of 1979 on the file of Sub Court, Vellore, respectively.

2. The Short facts are the Revision petitioner has field E.A. No. 45 of 1986 under Section 5 of the Limitation Act praying to condone the delay of three days in filing the Petition to restore E.A. No. 49 of 1984 which was dismissed for default. That was opposed by the respondents on the ground that there is no provision to excuse the delay and Section 5 of the Limitation Act is not applicable to proceedings in execution. After enquiry, the learned Subordinate Judge upheld the objection and dismissed the application. Aggrieved by that order, CRP. No. 3216 of 1987 is filed.

3. The revision petitioner filed E.A. No. 46 of 1986 under Section 5 of the Limitation Act to condone the delay of three days in filing the petition to set aside the dismissal order passed in E. A. No. 51 of 1984. Dated 19-3-1986. That was resisted by the respondents on the ground that the petition is not maintainable, that this is the third petition for restoration and that it is an abuse of presence of Court. After enquiry, the learned Subordinate Judge had upheld the objection holding that the petition is not maintainable and has dismissed the application. Aggrieved by the same, CRP. No. 3217 of 1986 is filed.

4-5.Mr. M. N. Muthukumaran, learned counsel for the petitioner, would submit that though Section 5 of the new Limitation Act is not applicable to a proceeding in execution, as per Order XXI, Rule 105(4) of the Code of Civil Procedure, framed by the Madras High Court, the provisions of Section 5 of the Limitation Act, 1908 shall apply to application is under sub-rule (1) of Rule 105 and as such, the applications are maintainable and the Court below was wrong in holding that the applications were not maintainable.

6. I have carefully considered the submissions made by, the learned counsel for the Petitioner: To consider the submissions of the learned counsel., Order XXI, Rule (4) of

C.P.C. framed by the Madras Nigh Court amendment, needs re-production and it reads as follows:-

"The provisions of Section 5 of the Limitation Act, 1908, shall, apply to applications under sub-rule (1).

In Subramania Mudali v. Srinivasa Pillai (1979) 2 Mad LJ 373: 1980 AIR(NOC) 61) a similar question came up for consideration before V. Balasubramanyan, J. In paragraph 12, the learned Judge has held as follows:-

"I am, therefore, quite clear in my mind that the reference in Order 21, Rule 105(4) to Section 5 of the Limitation Act continues to refer strictly and literally, to Section 5 of the old Act, 1908 notwithstanding its repeal and re-enactment in the present Limitation Act, 1963. The result is that the execution court in this case is quite right in entertaining the auction purchasers application for condonation of the delay in seeking to set aside the dismissal for default of the application which he filed under Order 21, Rule 105."

In paragraph 16, the learned Judge has held as follows:

" The arrangement was that there is nothing in Rule 105(4) which "expressly excluded", Section 5 of the new Limitation Act from applying. In my view, this is not the way to construe the words in question. The phrase not expressly excluded does not mean or imply that exclusion must be in express terms. In my view, the phrase "not expressly excluded" would take note of express exclusion as well as express sub-inclusion. In Order 21, Rule 105, this Court framed the rule expressly referring to Section 5 of the Indian Limitation Act, 1908; This express mention of Section 5 of the old Act amounted to an express non-inclusion of any subsequent amendment inconsistent with its original: meaning and effect. In this view, therefore, I am satisfied that Section 5 of th