The court established the inherent power of the court to restore an Execution Petition to file and the competency of an application filed under Section 151 of the Code of Civil Procedure.

1. The Civil Revision Petitioner/Respondent/Defendant has filed the present Civil Revision Petition as against the order dated 12.03.2001 passed in E.A.No.81 of 2000 in E.P.No.217 of 1996 in O.S.No.43 of 1991 by the learned District Munsif, Melur.

2. The learned District Munsif, Melur, while passing the orders in E.A.No.81 of 2000 in E.P.No.217 of 1996 on 12.03.2001, has among other things observed that E.A.No.81 of 2000 will be allowed on condition that the respondent/petitioner paying a cost of Rs.500/-to the revision petitioner/defendant before 20.03.2001 failing which the petition will stand dismissed.

3. According to the learned Counsel for the revision petitioner/defendant, the order passed by the Executing Court in E.A.No.81 of 2000 in E.P.No.217 of 1996 on 12.03.2001, is contrary to law and an irregular one. According to the learned Counsel for the petitioner/ defendant, the Executing Court should have seen that any application for setting aside the ex-parte order as per Rule 105 of Order 21 of the Code of Civil Procedure as per Rule 106(3) must be filed within 30 days from the date of the order, but this aspect of the matter has not been appreciated by the Executing Court in a proper perspective which has resulted in an erroneous order being passed in E.A.No.81 of 2000.

4. It is the plea of the learned Counsel for the petitioner/defendant that the Executing Court ought to have taken note of the fact that E.P.No.217 of 1996 has been dismissed for default by an order dated 09.01.1998, but the application for restoration has been filed only on 13.03.2000 and therefore, the application for setting aside the order of dismissal itself is barred by limitation.

5. The learned Counsel for the petitioner/defendant contends that when an application is barred by limitation since Section 5 of the Limitation Act is not applicable to any of the proceedings or an application under any of the provisions of Order 21 of the Code of Civil Procedure, the application itself should not have been taken on file, whatever be the reasons.

6. The principal contention of the learned Counsel for the petitioner/defendant is that E.A.No.81 of 2000 cannot be taken on file as per Section 151 of the Code of Civil Procedure, when there are specific provisions available under the Code of Civil Procedure. Therefore, E.A.No.81 of 2000 should have been dismissed as not maintainable by the Executing Court.

7. It is the contention of the learned Counsel for the petitioner/defendant that even assuming that E.A.No.81 of 2000 can be filed after the expiry of the limitation period, still in the absence of any application under Section 5 of the Limitation Act, E.A.No.81 of 2000 per se is not maintainable because it is not accompanied by a delay condonation application.

8. The further contention advanced by the learned Counsel for the petitioner is that the Executing Court cannot put the petitioner/defendant in a disadvantageous position when the respondent/decree holder has not worked out her remedy within the time prescribed in law.

9. The learned Counsel for the petitioner relies on the decision of the Honourable Supreme Court in Damodaran Pillai and others v. South Indian Bank Ltd., reported in 2005(4) CTC 534, wherein it is observed that Application under Section 5 of Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code of Civil Procedure as it has been expressly excluded.

10. Further, the learned Counsel for the petitioner contends that Section 5 of the Limitation Act, 1963, is not applicable to the application filed for setting aside the ex-parte order under Rule 106 of Order 21 of the Code of Civil Procedure and to lend support to his contention, he relies on the decision of this Court in M.Ponnupandian v. Selvabakiyam and others reported in 2003(4) CTC 225, wherein it is held that Section 5 of the Limitation Act, is not applicable to the petition filed for setting aside the ex-parte orders under Order 21 Rul