THE HON’BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.3391 of 2009 & C.R.P.M.P.No.4753 of 2010 in CIVIL REVISION PETITION No.3556 of 2010 & C.R.P.M.P.No.205 of 2010 in CIVIL REVISION PETITION (Sr.).No.932 of 2010 COMMON ORDER: Since similar questions arise for consideration in these civil revision petitions, the same are heard and taken up together for disposal by way of common order. These Civil Revision Petitions are filed under Section 115 of CPC aggrieved by the orders passed by the Principal Junior Civil Judge, Srikalahasti, in E.A.No.82 of 2009 in E.P.No.170 of 2007, E.A.No.373 of 2009 in E.P.No.170 of 2007 and E.P.No.170 of 2007. The respondent herein filed the suit in O.S.No.118 of 2003 on the file of the Principal Junior Civil Judge, Srikalahasti, for grant of permanent injunction against the revenue officials i.e., District Collector, Chittoor, Revenue Divisional Officer, Tirupati and the Mandal Revenue Officer, K.V.B.Puram. The said suit was decreed in favour of the respondent-plaintiff by judgment and decree, dated 30-11-2005. Thereafter, the respondent- plaintiff filed E.P.No.170 of 2007 against the judgment debtors and the petitioners herein stating that they are continuously causing troubles to him by disobeying the decree and, therefore, he requested the court to issue show-cause notice to the petitioners herein for disobeying the decree of permanent injunction and in default thereof, commit them to civil prison under Order 21 Rule 32 CPC. Notices were served on the petitioners herein and they have also entered appearance through their counsel on 21-01-2008. In spite of grant of several adjournments, the petitioners herein failed to file their counters and, therefore, they were set ex-parte by order, dated 07-07-2008. Thereafter, the petitioners herein filed E.A.No.82 of 2009 in E.P.No.170 of 2007 to condone the delay of 176 days in filing the application to set aside the ex-parte order. The court blow by order, dated 04-03-2009 dismissed the said application on the ground that the petitioners having received notice, they have sufficient knowledge about filing of the E.P., but they did not contest the E.P. proceedings and, therefore, it cannot be said that they are prudent in contesting the proceedings and, therefore, there is no ground to set aside the ex-parte order. The court below further observed that Section 5 of the Limitation Act is only applicable to the proceedings i.e., suits and petitions but not applicable to the execution proceedings. Aggrieved by the said order, C.R.P.No.3556 of 2010 is filed with an application in CR.P.M.P.No.4753 of 2010 to condone the delay of 434 days in filing the said C.R.P. The petitioners also filed E.A.No.373 of 2009 in E.P.No.170 of 2007 to condone the delay of 175 days in filing the application to set aside the ex- parte order. The court blow by order, dated 17-06-2009, dismissed the said application on the ground that when similar application in E.A.No.82 of 2009 was filed on earlier occasion, which was dismissed on merits by order, dated 04-03-2009, the present application cannot be entertained. Aggrieved by the said order, C.R.P.No.3391 of 2009 is filed. The petitioners were set ex-parte by order, dated 07-07-2008. Thereafter, E.P.No.170 of 2007 was allowed by order, dated 24-09-2008, with a direction to arrest the petitioners herein for one month. Aggrieved thereby, the petitioner filed C.R.P.(Sr.).No.932 of 2010 along with an application in C.R.P.M.P.No.205 of 2010 to condone the delay of 394 days in filing the Civil Revision Petition. Heard both the counsel. The petitioners instead of questioning the order in E.P.No.170 of 2007 in O.S.No.118 of 2003, dated 24-09-2008, they have made attempt to get the ex-parte order, dated 07-07-2008, set aside and as there was a delay in filing the application to set aside the ex-parte order, they have filed the aforesaid applications to condone the delay, which were dismissed. Now, the petitioners have filed C.R.P.(Sr.).No.932 of 2010, alongwith an application to condone the delay of 394 days in filing the C.R.P., against the order in E.P.No.170 of 2007. Admittedly, the C.R.P. is maintainable against the order in E.P.No.170 of 2007 under Section 115 of CPC, as the said order is not appealable. But, however, from the record it goes to show that the petitioners are not vigilant and prudent and they have remained ex- parte even after service of notice in the E.P. and they have not chosen to question the ex-parte order, dated 07-07-2008 in time and even the final order in E.P.No.170 of 2007, dated 24-09-2008, before this Court. Therefore, I am of the opinion that the petitioners being parties to the suit, it is just and desirable to have an order on contest in the E.P. Though there are lapses on the part of the petitioners, I am of the opinion that C.R.P.M.P.No.205 of 2010 seeking to condone the delay of 394 days in filing C.R.P.(Sr.).No.932 of 2010 and C.R.P.M.P.No.4753 of 2010 seeking to condone the delay of 434 days in filing C.R.P.No.3556 of 2010, are liable to be condoned, however, on payment of heavy costs, as the impugned orders in E.A.No.82 of 2009 and 373 of 2009 were erroneously dismissed on the ground that Section 5 of the Limitation Act is not applicable to the execution proceedings. In Ch.KRISHNAIAH Vs. Ch.PRASADA RAO[1] a Full Bench of this Court held as follows:- “Notwithstanding the repeal provisions in 1999 and 2002 amendments to CPC, Order XXI Rule 106 (4) of CPC as inserted by the High Court in exercise of powers under Section 122 of CPC enables a party to proceedings to file application under Section 5 of Limitation Act seeking condonation of delay in filing an application to set aside ex parte order passed under Order XXI Rule 106 (1) of CPC.” Therefore, it cannot be said that Section 5 of the Limitation Act is not applicable to the execution proceedings. As Section 5 of the Limitation Act is applicable to the E.P. proceedings also, the impugned orders in C.R.P.Nos.3556 of 2009 and 3391 of 2009 are liable to be allowed. As against the impugned order in E.P.No.170 of 2007, only revision lies and, therefore, the petitioners rightly filed C.R.P.(Sr.).No.932 of 2010, alongwith an application to condone the delay of 394 days. As the order in the E.P. is after setting the petitioners ex-parte, I am of the opinion that the order passed by the court below in E.P.No.170 of 2007, dated 24-09- 2008, is liable to be set aside, so as to enable both the parties to advance their arguments and so as to enable the court below to pass appropriate final orders afresh on merits, in accordance with law, in E.P.No.170 of 2007, more so when they are not the parties to the suit. Accordingly, C.R.P.M.P.Nos.4753 of 2010 and 205 of 2010 as well as the civil revision petitions are allowed directing the learned Principal Junior Civil Judge, Srikalahasti, to hear both the parties and pass appropriate final orders on merits, in accordance with law, in E.P.No.170 of 2007, within a period of eight weeks from the date of receipt of a copy of this order, subject to the condition of the petitioners paying costs of Rs.3,000/- to the decree holder within two weeks from the date of receipt of this order. There shall be no order as to costs. ___________ 13-08-2010 Note: Issue C.C. in one week (B/o) Prv [1] 2009 (6) ALT 82 (F.B.)