C L CLEETUS Vs. SOUTH INDIAN BANK LTD

JUDGEMENT

(1.) The 1st judgment-debtor in a decree obtained by the 1st respondent, the south Indian Bank impugns in this writ petition filed under Article 227, Exts. PI and p2 orders passed by the execution Court. Ext. PI is the common order passed on execution applications for setting aside ex parte order and for condonation of delay. Ext. P2 is the order passed on an execution application filed by the signatory to this writ petition seeking his impleadment as the next friend of the 1st judgment-debtor.

(2.) I have heard the submissions of Mr. T. Krishnanunni, learned counsel for the petitioner and also those of Sri K. Prabhakaran, learned Standing Counsel for the 1 st respondent Bank.

(3.) Sri T. Krishnanunni would flay both ext. P1 and Ext. P2. As regards Ext. P1, the learned counsel would submit that the learned Subordinate Judge was not justified in dismissing the applications filed by the petitioner on the ground of delay. There really was no delay and the condonation application was filed only by way of abundant caution. According to the learned counsel, ex parte orders contemplated under Rule 105 (3) of Order XXI, CPC are orders finally disposing of the execution petition and not orders setting the judgment debtor ex parte at some earlier stage of the execution proceeding; Period of limitation prescribed by rule 106 (3) of Order XXI applies only in respect of ex parte orders finally disposing of the execution proceedings. Learned counsel drew a parallel between applications filed on the original side under Order IX Rule 13, cpc and those filed under Order IX, Rule 7. Counsel submitted that the period of limitation applies only in respect of applications filed under Order IX, Rule 13 and not in respect of applications filed under Order IX, rule 7. Counsel would further submit that at any rate the petitioner should be permitted to participate in the further proceedings in the Execution Petition.