The exclusion of certain proceedings from the Limitation Act's applicability affects the ability to condone delays in related review petitions.

1. A very short question arises for our consideration in this Civil Revision Petition whether the provisions of S.5 of the Limitation Act could be pressed into service in spite of categorical exclusion of O.21, CPC from the applicability of the said provisions of the Act.

2. S.5 of the Limitation Act reads as under : -
"5. Extension of prescribed period in certain cases: - Any appeal or any application, other than an application under any of the provisions of O.21 of the Code of Civil Procedure 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

3. According to the learned Counsel for the Decree - Holder / Petitioner, the real question before the Court was whether a review petition could be entertained in respect of any order passed by the Court in any proceeding under O.21 of the Civil Procedure Code. According to the learned Government Pleader for the State the exclusion of O.21 of CPC from the scope of S.5 of the Limitation Act does not come in the way of the respondent because the executing Court was considering the maintainability of a review petition and not any order passed under O.21 of the CPC.

4. The learned Counsel for the petitioner emphatically submitted that review petition was not an independent proceeding. It emanated from the order passed by the executing Court in E.A. No. 41/95 dated 15-6-1995 for condoning the delay of 48 days in filing the review petition under O.47, R.1 of CPC 'Exclusion' from the purview of S.5 of the Limitation Act , therefore, according to the learned Counsel for the petitioner, amply covered not only the provisions of O.21 of CPC but also the off - shoots of the proceedings taken under O.21 of CPC including the review petition.

5. I am inclined to agree with the submissions made by the learned Counsel for the petitioner that having regard to the fact that review petition in all cases would not be an independent proceeding; it is necessarily to be correlated to any order passed under any statute which is amenable to review.

6. The learned Counsel for the rival parties cited various rulings in support of their respective contentions which we may now take up for consideration.

7. In the case of Sri Venugopalaswamyvari Devasthanam Konthivada v. K. Saraswathi , 1987 (1) ALT 37 (Notes on recent cases) it is held that S.5 of the Limitation Act did not apply to any of the applications arising under O.21 of the Code. O.21, R.106 of the Code expressly prescribed a limitation for setting aside an ex parte order for restoration of the application dismissed for default under sub-rule (3). Therefore, within the parameters of such limitation the application had to be filed, and by necessary implication the applicability of S.5 of the Limitation Act could not be extended. Accordingly, the Executing Court had no jurisdiction to entertain the application filed beyond the limitation prescribed under sub-rule (3) of R.106 of O.27 of the Code.

8. It is pertinent to note that in the case before us, in the impugned judgment, the learned Judge of the executing Court observed that in accordance with the ratio laid down by the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji , AIR 1987 SC 1353 the party cannot be denied its right at the threshold of the law of justice on a mere technical ground and by recording its satisfaction, the executing Court held that the petitioner had shown sufficient cause and, therefore, it was inclined to condone the delay o