The court clarifies the applicability of Section 5 of the Limitation Act to execution proceedings, reversing the lower court's dismissal of applications to condone delay.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K. NATARAJAN WEDNESDAY, THE 12 TH DAY OF NOVEMBER 2025 / 21ST KARTHIKA, 1947 CRP NO. 9 OF 2023 AGAINST THE ORDER/JUDGMENT DATED 25.08.2022 IN OS NO.206 OF 2004 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, PALAKKAD REVISION PETITIONER/S:

SIVADASAN P B AGED 49 YEARS MADAKKATHARA VILLAGE, CHIRAKKAKODU DESOM, THRISSUR TALUK, THRISSUR DISTRICT 680654 BY ADVS.

SHRI.SARATH BABU KOTTAKKAL SHRI.REBIN VINCENT GRALAN RESPONDENT/S:

SAKKEENA AGED 65 YEARS KADAMBODE, KARUMATHRA VILLAGE, MUKUNDAPURAM DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680733 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON

12.11.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O R D E R This revision petition is filed by the petitioner/ decree holder by challenging the order passed by the Principal Subordinate Court, Palakkad, on E.A Nos.101/2022 & 102/2022 in E.P No.151/2018.

2.Heard the learned counsel for the petitioner.

3.The case of the petitioner is that the petitioner had obtained a decree in O.S No. 206/2004. Pursuant to the said decree, he has filed an execution case in E.P No. 151/2018, wherein a notice has been ordered. When the matter was posted for taking steps on 05.11.2021, the petitioner was not able to take steps on that date, due to which the execution petition was dismissed for default.

4. Subsequently, the petitioner has filed E.A Nos.101 and

102/2022, seeking to set aside the dismissal of the execution petition and to condone the delay of 72 days in filing the said application. However, both applications came to be dismissed by order dated 25.08.2022. Hence, the petitioner is before this court.

5.The learned counsel for the petitioner has strenuously contended that the Execution Court dismissed the applications for condoning the delay mainly on the ground that Section 5 of Limitation Act is not applicable to the execution proceedings under Order XXI of the CPC. Therefore, the delay was not condoned, and the applications were dismissed.

6.The learned counsel for the petitioner brought to the notice of this court that, in a similar circumstances and on identical facts of the case, the Coordinate Bench of this court in the case of Chellamma v. Somakumari and Others [2015(5) KHC 737] has categorically held that Section 5 of the Limitation Act is applicable to execution proceedings. It was also observed therein that Article 122 of the would apply, and that when an execution petition is posted for taking steps and not for hearing, Rule 106 of Order XXI CPC would have no application.

Hence, prayed for setting aside the order.

7.Having heard the learned counsel for the petitioner and upon perusal of the records, as well as the judgment of the Coordinate Bench of this Court in Chellamma v. Somakumari and Others (supra), the relevant portion of the said decision reads as under.

“15.R.105 specifically provides that the execution Court may fix a day for hearing of the application. The eventualities covered by sub-rules (2) and (3) of R. 105 could occur only in a case where the executing Court did fix a day for hearing of the application. When no such day was fixed for hearing of the application, R.105 and R.106 of Order XXI does not apply at all. When the Execution Petition is posted for taking steps before the date fixed for hearing. it is not covered by R.106 of Order XXI. The consequences of non appearance of the parties on any such day before the date fixed for hearing are not provided under Order XXI CPC. Those cases are covered by the inherent powers of the Court which are saved under S.151 of the Code of Civil Procedure. For filing an application under S.151 CPC, no period of limitation is provided