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 ex parte 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 ex parte 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 ex parte 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 ex parte 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 applicable. The other contention is that even assuming that this provision is not applicable, the application for setting aside the ex parte order would be within time from the date of the knowledge. I may here itself pause and note that any opinion with regard to the merits of the petition seeking to set aside ex parte 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:
“Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period”.
Section 5 therefore ex-facie excludes its application to any applications made under the provisions of Order 21 of the Code of Civil Procedure. In view of this exclusion of Section 5 to any ex parte order passed under Section 21 of the Code of Civil Procedure, the Madras High Court has introduced sub-rule (4) of rule 105 of Order 21, which says that the provisions of Section 5 of the Limitation Act shall apply to applications seeking to set aside the ex parte ordors made under Rule 104, C.P.C Rule 105 of Order 21, C.P.C prior to the amendment stood as follows:
“(1) The applicant against whom an order is made under sub-rule (2) of preceding rule or a respondent against whom an orderis passed ex-parte under sub-rule (3) of the preceding rule or under sub-rule (1) of rule 23 of this order, may apply to the court to set aside the order and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application;
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the opposite party.
(3) An application under sub-rule (1) shall be made within 30 days of the date of the order or, where in the case of an ex parte order the notice was not duly served, the date when the applicant had knowledge of the order.
(4) The provisions of S. 5 of Indian Limitation Act, 1909. shall apply to application under sub-rule (1)”.
Subsequent to the amendment the corresponding provision as incorporated in Order 21 Rule 106, C.P.C is as follows:
(1) The applicant, against whom an order is made under subrule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub rules (3) of that rule or under sub-rule (1) of, rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as It thinks fit and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party—
(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where in the case of an ex-parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order”.
A plain reading of these two provisions would disclose that sub-rule (4) of Rule 105 of Order 21, C.P.C prior to the amendment stands now deleted from the provisions of Order 21, Rule 106 C.P.C Section 97 of the Code of Civil Procedure Amending Act lays down that all State High Court amendments made prior to the commencement of the said Act, that is, prior 1-2-77, shall stand repealed in so far as they may be inconsistent with the provisions of the Code as amended by that Act. It can be seen that that the omission in the latter Code of any-provision-relating to the application, of Section 5 of the Limitation Act is so express that it has to be concluded that there is inconsistency between the similar provisions, and therefore to the extent of the omission the old Act stands repealed with the result that Section 5 of the Limitation Act cannot be now invoked with regard to the petitions filed for setting aside the ex parte orders made under Order 21, Rule 105, C.P.C It is however the next contention of Mr. Venkata Ramana, learned counsel for the revision-petitioners that even from the date of knowledge the petition for setting aside the exparate order was within time. I have already noted above that in this revision petition I need not express any opinion on that question, since that petition is still pending before the trial court, and the said petition would be disposed of on its own merits. Suffice to say that in view of the inconsistency between the old provisions and the amended provisions, which later provisions have expressly omitted, the application of Section 5 of the Limitation Act to petitions filed for setting aside the ex parte orders under Order 21 Rule 105, C.P.C, it can be held that the present petition is not maintainable. The order of the lower Court on the legal question is only in accordance with law, and therefore no interference by way of revision is warranted.
4. In the result, the revision petition is dismissed, but without costs in the circumstances of the case.