B SANTHAMMA Vs. B K KOTI REDDY

JUDGEMENT

(1.) The revision petitioner is the decree holder in OS No. 125/74. The short question involved is whether an application under Section 5 of the Limitation Act to restore EA No. 1140/76 dismissed for default on 1-2-1978 is maintainable. The District Munsif by the impugned order dt. 17-12-1979 held that such an application is maintainable and hence this revision. The revision petitioner obtained a decree in OS No. 125/74 on the file of the District Munsif's Court, Nur vid. She was executing the decree against Respondents 1 and 2 in EP No, 25/71 on the file of District Munsif's Court, Vijayawada. She brought the property of the 2nd judgment debtor to sale on 28-2-1972. At such sals, the 3rd respondent became the auction purchaser. The second judgment-debtor filed EA No. 1140/76 to set aside the sale. That application stood posted for hearing on 1-2-1978 on which date he could not attend court. EA No. 1140/76 was dismissed on 1-2-1978 for default. The 2nd judgment-debtor applied for setting aside the default order and as there was delay in making that application, he filed EA No. 1124/78 under Section 5 of the Limitation Act for condoning the delay that had occurred. He gave a reason that he was attacked by chest pain two days prior to 1-2-1978 and produced a medical certificate in proof of that allegation. The application was opposed by the auction purchaser mainly on the ground that it was not maintainable under Section 5 of the Limitation Act. Both the parties invited a finding of the District Munsif regarding the maintainability of the application. The learned District Munsif held that such an application to condone the delay was maintainable It is questioning that order that the decree-holder has come to this court in revision. Section 5 of the Limitation Act 1963 is inapplicable to applications filed under any of the provisions of Order 21. CPC Prior to Section 97 of the Amending Act of 1976, Order 21 Rule 105 was containing a provision that an application may be admitted after the said period of 30 days if the applicant satisfies the court that he had sufficient cause for not making the application within such period. Section 97(1) of the Civil Procedure

(2.) This Civil Revision Petition is preferred to the Division Bench at the instance of P. Ramachandra Raju, J. whojentertained a doubt as to the correctness of the decision in Muppa aju Sriramulu vs. Pidikiti Kotaiah (supra). The issue is whether Section 5 of the Limitation Act is applicable to proceedings under Order 21 CPC.

(3.) The petitioner in the revision petition is the decree-holder. The judgment-debtor filed an application for setting aside the sale and this application was dismissed for default. As there was delay in filing the petition for setting aside the default order, an application to condone the delay was filed under Section 5 of the Limitation Act. This application is registered by the decree-holder contending that Section 5 of the Limitation Act is not applicable io proceedings under Order 21 CPC. The plea of the decree-holder is negatived.