IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 OP(C).No. 3807 of 2011(O) ------------------------------------- EA. 855/2011 IN OS.20/1987 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER (S): PETITIONERS --------------------------------------------- 1. ST.MARY'S CHURCH, KUDAVECHOOR, VECHOOR KARA AND VILLAGE, VAIKOM TALUK,KOTTAYAM DISTRICT, REPRESENTED BY ITS NADATHU KAIKARAN SHRI.M.J.MATHEW, S/O.JOSEPH,AGED 53,MANNATHALIL, VECHOOR KARA AND VILLAGE, PUTHUPPATHIL HOUSE, KUDAVECHOOR PO,EDAYAZHAM KARA, VECHOOR VILLAGE VAIKOM TALUK. 2. ST.MARY'S CHURCH, KUDAVECHOOR, KUDAVECHOOR, VECHOOR KARA AND VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, REPRESENTED BY ITS VICAR REV.FR.VARGHESE PAINUNKAL. BY ADV. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN RESPONDENT(S): RESPONDENT ---------------------------------------------- 1. THANKAMMA THOMAS, W/O.LATE V.E.THOMAS, AGED ABOUT 71, PALLIVATHUKKAL HOUSE, DOOR NO.13/674, GREESHMA, B.M.C. PO, KOCHI-682 021. 2. C.J.AUGUSTINE, S/O.LATE OUSEPH, AGED ABOUT 76, CHERIYAMULLAYIL HOUSE, AMBIKA MARKET P.O., VECHOOR KARA AND VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686 144. 3. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM-686 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. NO.3807/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- TRUE COPY OF IA.NO.2731 OF 2010 DATED 16.8.2010 FILED BY THE PETITIONER BEFORE ADDITIONAL SUB COURT, KOTTAYAM. EXHIBIT P2- TRUE COPY OF OBJECTION FILED BY RESPONDENT IN IA NO.2731 OF 2010 ON THE FILE OF ADDITIONAL SUB COURT, KOTTAYAM. EXHIBIT P3- TRUE COPY OF E.A.NO.854/2011 IN IA NO.2731 OF 2010 FILED BEFORE ADDITIONAL SUB COURT, KOTTAYAM. EXHIBIT P4- TRUE COPY OF DELAY CONDONATION APPLICATION IN E.A.NO.855/2011 FILED BEFORE ADDITIONAL SUB COURT, KOTTAYAM. EXHIBIT P5- TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS DATED 10.10.2011 IN E.A.NO.854/2011 ON THE FILE OF ADDITIONAL SUB COURT, KOTTAYAM. EXHIBIT P6- TRUE COPY OF ORDER DATED 10.10.2011 IN IA NOS. 854/2011 PASSED BY THE ADDITIONAL SUB COURT, KOTTAYAM. EXHIBIT P7- TRUE COPY OF ORDER DATED 10.10.2011 IN IA NO.855/2011 PASSED BY THE ADDITIONAL SUB COURT, KOTTAYAM. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3807 of 2011 --------------------------------------- Dated this 24th day of November, 2011 JUDGMENT Petitioners complain that a portion of the property belonging to them was taken possession and delivered to the first respondent on 17.07.2010 in execution of the final decree in O.S.No.20 of 1987 of the Court of learned Additional Sub Judge, Kottayam. Saying so, petitioners filed I.A.No.2731 of 2010 (?) in O.S.No.20 of 1987 under Secs.47, 151 and Rule 99 of Order XXI of the Code of Civil Procedure (for short, "the Code”) seeking re- delivery of that portion of the property (I am told that I.A.No.2731 of 2010 was taken up by the learned Sub Judge in the execution side). That application was dismissed for default on 18.07.2011. On 01.09.2011 petitioners filed E.A.No.854 of 2011 to restore I.A.No.2731 of 2010(?). Since that application was filed fourteen days after the prescribed time petitioners filed E.A.No.855 of 2011 under Sec.5 of the Limitation Act (for short, "the Act”) to condone the delay. Those applications were resisted by the first respondent. Learned Sub Judge dismissed E.A.No.855 of 2011 for the reason that Sec.5 of the Act has no application to the proceedings in execution of a decree. O.P(C).No.3807 of 2011 -: 2 :- Consequently E.A.No.854 of 2011 was dismissed as time barred. Exts.P6 and P7, orders on E.A.Nos.854 and 855 of 2011 are under challenge. 2. Learned counsel submitted that there was no adjudication on I.A.N.2731 of 2010 on merit and hence a separate suit is not barred. But, I need not go into that question in this proceeding. 3. Under Rule 106(3) of Order XXI of the Code, the application to set aside dismissal of I.A.No.2731 of 2010 (it appears, that application was not re-numbered even after it was posted on the execution side) ought to have been filed within thirty days from the date of the order. Admittedly, I.A.No.2731 of 2010 was dismissed on 18.07.2011 and E.A.No.854 of 2011 for its restoration was filed only on 01.09.2011, ie, beyond the period of 30 days prescribed by sub rule (3) of Rule 106 of Order XXI of the Code. Rule 106 does not provide for condonation of delay. Sec.5 of the Act is clear that the said provision does not apply to an application under any of the provisions of Order XXI. E.A.No.854 of 2011 is an application filed under Rule 106 of Order XXI. If that be so, Ext.P7, order dismissing E.A.No.855 of 2011 to condone the delay in filing E.A.No.854 of 2011 is correct O.P(C).No.3807 of 2011 -: 3 :- and calls for no interference. The consequence is dismissal of E.A.No.854 of 2011 as per Ext.P6, order which also does not call for interference. This original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-