Section 5 of the Limitation Act cannot be invoked in execution proceedings for condonation of delay.

These Revisions have been preferred by the petitioner/decree holder against the dismissal of E.A.No.464 of 2007 seeking for condonation of delay of 190 days in filing the application to restore the execution petition and also against the dismissal of E.A.No.465 of 2007 filed to restore E.P.40 of 1992 to the file, respectively.

2. Heard Mr.S.Kaithamalai Kumaran learned counsel appearing for the revision petitioner and Mr.N.Manoharan learned counsel appearing for the respondent.

3. According to the submissions made by the learned counsel for the petitioner, the petitioner was the decree holder in O.S.No.170 of 1983 and he had obtained a decree in his favour on 13. 1988. The appeal preferred by the respondent before the first appellate Court in A.S.No.34 of 1990 was also dismissed by confirming the judgment of the trial Court. Similarly, the second appeal preferred by the respondent/judgment debtor in S.A.No.236 of 1992 was also dismissed and decree passed by the trial Court was confirmed and accordingly, execution petition was filed by the revision petitioner/decree holder in E.P.No.40 of 1992. But, the said E.P.No.40 of 1992 was dismissed by the Execution Court on 31.07.2007 for non-appearance of the petitioner. However, the revision petitioner/decree holder filed another execution petition in E.P.4.2007, but the said EP.4 of 2007 was not filed within three years from the date of judgment of the High Court made in S.A.No.236 of 1992 ie, 18.07.2002 and therefore, the said EP.No.4 of 2007 was not pressed with a fond hope that the earlier EP.No.40 of 1992 could be restored. He would further submit that accordingly the revision petitioner/decree had filed the applications to restore the EP to file and to condone the delay of 190 days in filing the said application before the said Court. The Execution Court has not considered the case of the petitioner and did not accept the reasons mentioned therein stating the delay in filing the petition was not explained by the petitioner and it had dismissed the applications. The learned counsel for the revision petitioner would submit that the said decision of the lower Court is not in accordance with law and it has become necessary to interfere with the orders of the Execution Court and thereby the revision has to be allowed.

4. The learned counsel for the respondent would submit in his argument that the lower Court has correctly come to the conclusion of dismissing the applications since the reasons assigned by the petitioner were not convincing and the petitioner cannot also seek for setting aside the exparte order and to restore the EP to the file, since there was enormous delay. He would also submit that section 5 application is not applicable to the execution proceedings and on that score also, the application to condone the delay of 190 days is not maintainable. The learned counsel for the respondent would cite a judgment of the Honourable Apex Court reported in 2005(7) SCC 300 in between Damodaran Pillai and others Vs. South Indian Bank Ltd., to support his case. Therefore, he would submit the Court that no interference with the order passed by the lower Court is necessary and accordingly, the Revision may be dismissed.

5. I have given anxious thoughts to the arguments advanced by both sides. Both the revisions have been filed by the petitioner against the dismissal orders passed by the lower Court in the application filed by the petitioner to condone the delay of 190 days in filing the application to restore the E.P.40 of 1992 filed by the petitioner and the application to restore the E.P.40 of 1992 to the file. The lower Court was not convinced with the reasons assigned by the petitioner for condoning the delay. However, it did not go into the question of maintainability of the application seeking for condonation of delay of 190 days in filing the application to restore EP.40 of 199.

6. For the purpose of understanding the provisions Section 5 of Limitation Act, it is