( 1. ) HEARD the learned counsel appearing for the petitioners as well as the respondents.

( 2. ) THIS civil revision has been preferred, challenging the order, dated 23.02.2010 made in E.P.No.87 of 2003 in O.S.No.401 of 1981 on the file of the learned District Munsif, Thiruvarur.

As per the impugned order, dated 23.02.2010, demolition of superstructure and delivery of possession of the suit property was ordered by the Court below by 30.03.2010, aggrieved by which, the revision is preferred by the petitioners / judgment-debtors.

( 3. ) IT is an admitted fact that the suit was filed by one S.M.Vajeer Ussan against the revision petitioners herein, seeking a decree, directing the defendants therein to deliver the possession of the suit schedule property described in the plaint, marked in red colour as ALJI, after removing the construction put up by the petitioners herein and also sought further direction for appointment of an officer of the Court to demolish the superstructure and also to grant permanent injunction restraining the defendants from proceeding with further construction over the blue shaded portion of the plaint schedule property. The suit was decreed by the trial court, after the trial, however, the first appellate court allowed the appeal and the suit was dismissed. In the second appeal, this Court allowed the same, confirming the judgment and decree passed by the trial court, thus the judgment and decree of the trial court attained finality, which is not in dispute.

( 4. ) PURSUANT to the decree, Execution Petition was filed by the legal representatives of the plaintiff, who are arrayed as respondents in this revision. It is an admitted fact that after the judgment and decree passed in the second appeal has become final, the decree-holder filed Execution Petition and as the counsel for the petitioners / judgment-debtors before the court below reported no instructions, the petitioners / judgment-debtors were called absent and set exparte. Subsequently, the petitioners filed an un-numbered Execution Application under Order 21 Rules 106 and 151 CPC, seeking to set aside the exparte orders, dated 17.11.2009 and 22.12.2009. It is seen that the said Execution Application filed by the petitioners herein before the Court below was returned with a query asking as to how the application was maintainable, after the expiry of limitation of 30 days. Subsequently, there was an endorsement made by the counsel for the petitioner before the trial court that a petition to condone delay was also filed along with the petition and accordingly, it was represented. It is seen that the petition to condone the delay was filed only on 23.02.2010, as per the date available in the original petition. Therefore, it is made clear that the said petition was not filed along with the petition to condone the delay of 30 days in filing petition to set aside the exparte order and further the petition to condone the delay in an application filed under Order 21 rules 106 to rules 151 is not legally maintainable.

Learned counsel for the petitioners drew the attention of this Court to the petition filed under Section 5 of the Limitation Act and submitted that on 23.02.2010, an endorsement was made as follows: 'Take notice', 'no objection to set aside the exparte order'. However, the petition was returned by the court below, as not maintainable. Learned counsel for the petitioners further submitted that while the Execution Application, seeking an order to set aside the exparte order and to condone the delay of 30 days was returned, delivery of possession could not be ordered by the Court below.

( 5. ) PER contra, learned counsel for the respondents / decree-holders contended that the suit was filed in the year 1982 and even after the judgment and decree, which had reached finality, the petitioners are protracting the case. As per Order 21 Rule 106 CPC, if a petition filed after the expiry of 30 days, that could not be entertained by the Executing C