MUPPARAJU SREERAMULU Vs. PIDIKITI KOTAIAH

JUDGEMENT

(1.) This revision petition by the judgment-debtors is directed against the order of the Subordinate Judge, Ongole, dated 20th November, 1973 whereby he dismissed a petition to excuse delay in setting aside an exparte order passed in E.P. 97/76.

(2.) The Execution Petition 97/76 stood posted to 28-8-78. This Execution Petition was laid for the sale of the properties of the judgment- debtors attached in I.A. 1036 of 1975 before judgment. The judgment debtors contested the said I.A. 1036/75 and also filed a counter in E.P. 97/ 76. There was also another E.P. in the same suit bearing E.P. 150/77. The case of the revision petitioners is that their Advocate clerk did not know the date of hearing, i.e., 28-8-78 in E.P. 97/76 as the said clerk fell ill and meanwhile a temporary clerk was acting under the Advocate. The earlier clerk recovered from illness and he attended the court on 24-10-78, to which date E.P. 150/77 was adjourned. On the said date they came to know that an exparte order was passed in E.P. 97/76 on 28-8-78. They thus filed a petition for setting aside the exparte order passed on 28-8-78 and also E.A. 444/78, under section 5 of the Limitation Act to condone the delay in filing a petition for setting aside the exparte order. The delay alleged is of thirty eight days. This section 5 Limitation Act petition was resisted by the decree-holder inter alia contending that the Advocate's clerk did not fall ill, and the date of the alleged knowledge is not correct. It was also contended that this petition under the provisions of Order 21 Rule 106, C.PC. as amended by the Act 104 of 1976, is not maintainable. This contention of the decree-holder found favour with the learned Subordinate Judge. He held that under Order 21 Rule 105, CPC. prior to the amendment there was an express provision applying section 5 of the Limitation Act to petitions, for setting aside exparte orders made in execution petitions but under the amended Code which came into force from 1-2-77, section 5 is not made applicable with regard to petitions filed for setting aside the exparte orders in execution petitions. He thus dismissed this petition. Hence this revision.

(3.) Mr. Venkata Ramana, learned counsel for the revision-petitioners contended that as per Section 97 of the Code of Civil Procedure Amending Act, 1976, since there is no inconsistency between the old provisions and the amended provisions, it must be deemed that the old provisions contained in Order 21 Rule 105 sub-section (4) applying Section 5 of the Limitation Act to such provisions, must be deemed to be still lapplicable. The other contention is that even assuming that this provision is not applicable, the application for setting aside the exparte order would be within time from the date of the knowledge. I may here itself paruse and note that any opinion with regard to the merits of the petition seeking to set aside exparte order is not called off at this stage, where solely the question is whether the Section 5 of the Limitation Act is applicable or not. In this context it is necessary to read the provisions of section 5 of the Limitation Act itself at the outset. Section 5 of the Limitation Act reads as follows: