Applications for condonation of delay under Section 5 of the Limitation Act are typically inapplicable to proceedings under Order XXI of CPC unless exceptional circumstances dictate otherwise.

ORDER :

P.B.BALAJI, J.

This revision has been filed challenging the order passed in E.A.No.37 of 2022 dated 04.02.2025 in E.P.No.44 of 2002, in and whereby the delay of 573 days in filing the application to restore E.P.No.44 of 2002, has been allowed on payment of costs of Rs.3,000/- to the respondents, that is the revision petitioners.

2. I have heard Mr.T.K.Saravanan, learned counsel for the revision petitioners and Mr.T.M.Naveen, learned counsel for the respondents.

3. It is the contention of the learned counsel for the revision petitioners that the executing Court did not have the power to exercise, in the first place, Section 5 of the Limitation Act, as admittedly the order was passed beyond the period of 30 days, which alone can be condoned under relevant provisions of Order XXI of CPC. He would also rely on the decision of this Court in R.Rasappan Vs. D.Rajalakshmi , reported in 2025 SCC Online Mad 4068, where this Court has held that the executing Court cannot entertain an application under Section 5 of the Limitation Act if it filed beyond the period of 30 days from the date of the order.

4. The learned counsel for the petitioners would also place reliance on the decision of the Division Bench of this Court in N.M.Natarajan Vs. Deivayanai Ammal and others , reported in 1989 1 L.W Page 178, where the Hon'ble Division Bench of this Court held that with reference to applications under Section Order XXI of CPC, there is a statutory bar in applying the provisions of Section 5 of the Limitation Act and an application to condone the delay cannot be maintained for setting aside the order passed ex-parte under Rule 106 of Order XXI of CPC. He would also place reliance on the decision of the Hon'ble Supreme Court in Damodaran Pillai and others Vs. South Indian Bank Limited, reported in (2005) 7 SCC 300, where the Hon'ble Supreme Court held that Section 5 of the Limitation Act is inapplicable to Order XXI of CPC. He would therefore pray for the revision being allowed.

5. Per contra, Mr.T.M.Naveen, learned counsel appearing for the respondents would submit that though this Court in Rasappan's case has elaborately dealt with the applicability of Section 5 of the Limitation Act to Order XXI and has held that Section 5 does not apply, inviting my attention to the circular issued by this Court in ROC.No.81478-A/2025/F1, the learned counsel for the respondents would submit that limitation of 30 days would apply only when an application is filed under Order XXI Rule 106(3) of CPC to set aside an order under Order XXI Rule 105(2) of CPC, on account of non-appearance and not for any other reason. Referring to clause (ii) of the circular, incorporating the decision of the Hon'ble Rules Committee of this Court, on the Administrative Side, the learned counsel for the respondents would submit that if the matter is dismissed on a date not fixed for hearing, but fixed for some other purpose, the order will not come within the ambit of Order XXI Rule 105(2) of CPC and Order XXI Rule 105(1) of CPC. He would therefore state that the execution petition was dismissed only for non production of the stay order granted by this Court and was not posted for hearing on a date on which the execution petition came to be dismissed. He would therefore state that the executing Court has rightly condoned the delay and directed the executing petition to be heard on merits. He would also rely on the decision of this Court in Karuppa Gounder Vs. Pongiyanna Gounder and others , reported in 2020 SCC Online Mad 28454 and Nattan Ambalam Vs. Dhanalakshmi , reported in 2011 (2)