CHELLAMMA Vs. SOMAKUMARI

JUDGEMENT

(1.) The petitioner, the decree - holder in OS No. 716 of 1994 on the file of the Court of the Principal Sub Judge, Kollam, filed EP No. 399 of 2006 on 08/12/2006 for realisation of the decree amount of Rs.1,71,347/-. The Execution Petition was posted for taking steps on 01/03/2008. On that day, the counsel for the decree - holder was not present. Steps were also not taken. The executing Court dismissed the Execution Petition on 01/03/2008 for default. On 21/06/2008, the decree - holder filed EA No. 370 of 2008 under R.106 of Order XXI of the Code of Civil Procedure. That application was filed beyond 30 days as provided under sub-rule (3) of R.106 of Order XXI of the Code of Civil Procedure. The Court below dismissed EA No. 370 of 2008 on the ground that the application was not filed within time and that S.5 of the Limitation Act is not applicable to any proceeding under Order XXI of the Code of Civil Procedure.

(2.) The first judgment - debtor was the brother of the decree - holder. He died pending Execution Petition. His wife is the second judgment - debtor. Their children were sought to be impleaded as supplemental respondents. The prayer in the Execution Petition was to arrest and detain the first judgment - debtor in civil prison and also to attach and sell the movable and immovable properties belonging to the judgment - debtors.

(3.) The decree - holder had filed EP No. 54 of 1999 on an earlier occasion and that Execution Petition was dismissed for default on 30/09/2002. The present EP, namely, EP No. 399 of 2006 was filed about 4 years thereafter.