JUDGMENT :

(Prayer: Civil Revision Petition filed under Section 115 of C.P.C., against the fair and decreetal order dated 27.02.2018 made in E.A.No. 88 of 2017 on the file of the District Munsif Court, Sathyamangalam in E.P.No. 6 of 2010 on the file of the District Munsif Court, Sathyamangalam.)

1. This revision is by the decree holder in O.S.No. 88 of 2002 challenging the order dismissing his application for restoration of an execution petition that was dismissed for default on 28.03.2014. 2. The petitioner had sued for reliefs of declaration that the width of cart track at 12 feet, mandatory injunction directing the defendants 5 to 7 to restore the cart track and for permanent injunction restraining the defendants 1 to 4 and others from reducing the width of the cart track. The said decree dated 12.04.2008 was put in execution in E.P.No. 6 of 2010. A Commissioner was appointed by the Trial Court to carry out the exercise and the execution petition was adjourned for report of the Commissioner on several occasions. Since the Commissioner did not file his report, the Executing Court dismissed the execution petition for default on 28.03.2014. The petitioner filed an application in E.A.No. 88 of 2017 on 18.09.2015 seeking restoration of the execution petition under Section 151 of C.P.C.

3. This was opposed by the respondents / judgment debtors contending that the application under Section 151 of C.P.C is not maintainable. The order passed by the Executing court being one under Order 21 Rule 105(2) of C.P.C and application for restoration has to be made under Order 21 Rule 106(1) of C.P.C within 30 days from the date of the order as provided under Order 21 Rule 106(3) of C.P.C. It was also pointed out that Section 5 of the Limitation Act would not apply to an application under Order 21 Rule 106 of C.P.C. Therefore, the application for restoration of the execution petition itself is not maintainable. The Trial Court accepted the defence and also concluded that it is open to the decree holder to file a fresh EP as the same would be within the time allowed under law. On the above conclusions, the executing Court dismissed the petition. Aggrieved, the decree holder has come up with this revision.

4. Heard Mr.M.Roshan Atiq, learned counsel for the petitioner and Mr.R.Thirumoorthy, learned counsel for the respondents 1 to 3. Other respondents though served, are not appearing either in person or through counsel, duly instructed.

5. Mr.M.Roshan Atiq, learned counsel appearing for the petitioner would vehemently contend that the application under Section 151 is maintainable in as much as the dismissal of the execution petition is not under Order 21 Rule 105(2) of C.P.C. Drawing my attention to the language of Order 21 Rule 105(2), which reads as follows:-

“(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.” Mr.M.Roshan Atiq would contend that the dismissal Order 21 Rule 105(2) could be only for non-appearance of the applicant and Order 21 Rule 106 would apply only when the applicant seeks to set aside an order passed under Sub-rule 2 Rule 105 of Order 21 of C.P.C. He would further contend that if the dismissal is for any reason other than the absence of the applicant / decree holder, the dismissal not being one under Order 21 Rule 105(2), the provisions of Order 21 Rule 106 would not apply and therefore, the proper provision would be Section 151 of C.P.C.

6. The learned counsel would also draw my attention to the judgment of this Court in Nattan Ambalam Vs. Dhanalakshmi reported in (2011) 4 MLJ 664 wherein, it was held that if the dismissal of the execution petition is not under Sub-rule 2 of Rule 105 of Order 21of the Code, the restoration application cannot be under Sub-rule 1 of Rule 106 of Order 21. If the application is not one under Sub-rule 1 Rule 106 of Order 21, the limi