Judgment :- 1. The civil revision petitioner herein is the applicant in E.A.No.166 of 2009, judgment debtor in E.P.No.77 of 2007 and defendant in O.S.No.686 of 1970, on the file of the District Munsif Court, Poonamallee, Thiruvallur District. 2. The civil revision petitioner has filed an execution application No.166 of 2009 praying to set aside the ex-parte order of removal of obstruction, dated 30.04.2009, under Order No.41, Rule 5 of the Civil Procedure Code. In the said application, the revision petitioner has inter-alia stated that for non filing of counter statement in E.P.No.77 of 2007, was said ex-parte on 30.04.2009. This fact known to the revision petitioner on 01.06.2007, since the matter was reversed to the Lok Adalat for amicable settlement. 3. The counter statement filed by the respondent/plaintiff states that the revision petitioners counsel sought time before the E.P.Court for filing his counter statement. Hence, the Court has granted sufficient time on several occasions. But, he did not file the counter statement. The respondent further stated that the suit was initiated in the year 1970, after contest the decree was confirmed by the Courts and executed the said decree. The execution order passed on 30.04.2009, but the set aside application was filed on 02.06.2009, but the application has to be filed on 01.06.2009, for one days delay. In the absence of the condone delay petition the set aside application has been filed and as such, the petition is not maintainable. Further, the respondent has stated in his counter that it is not an exparte order, but only a contested decree and only that decree had been executed, that too also only after a period of 40 years. Hence, the respondent has prayed for dismissal of the petition in E.A.No.166 of 2009 in E.P.No.77 of 2007. 4. The learned District Munsif Judge, Poonamallee in his order dated 24.07.2009, passed in E.A.No.166 of 2009, in E.P.No.77 of 2007 has observed that the suit has been filed in the year 1970 seeking removal, of constructions put up by the judgment debtor. The suit has been decreed on 09.01.1973. The judgment debtor has preferred first appeal in A.S.No.114 of 1973. The same was dismissed on 29.07.2005. Subsequently, the judgment debtor had filed the second appeal in S.A.No.700 of 1976, which had also been dismissed on 19.09.1979. Thereafter, the judgment debtor had filed O.S.No.87 of 1983, which had also been decreed against him. The suit has been decreed on 09.01.1973. The judgment debtor has preferred first appeal in A.S.No.114 of 1973. The same was dismissed on 29.07.2005. Subsequently, the judgment debtor had filed the second appeal in S.A.No.700 of 1976, which had also been dismissed on 19.09.1979. Thereafter, the judgment debtor had filed O.S.No.87 of 1983, which had also been decreed against him. Finally, the decree holder had filed the E.P.No.77 of 2007. The judgment debtor entered appearance on 06.10.2007. For filing counter statement, the E.P.proceedings was adjourned from time to time. While so, with both parities consent, the matter was referred to the Lok Adalat. The matter had also not been settled before the Lok Adalat. Again, the matter has been remitted to the execution Court on 15.04.2009. This Court had taken up the case on 30.04.2009 and passed orders for eviction. 5. Aggreived by the said order passed in E.A.No.166 of 2009 by the learned District Munsif in E.P.No.77 of 2007, dated 24.07.2009, the present civil revision petition has been preferred by the civil revision petitioner/applicant/judgment debtor/defendant. 6. Learned counsel appearing for the civil revision petitioner argued that the Lower Court failed to note that the matter was referred to Lok Adalat and due to non cooperation of the plaintiff, it had failed. The revision petitioner has been informed that notice would be given to his counsel or to him regarding the date of next hearing before the Court, but without notice to him, the matter was called on 30.04.2009 and orders were passed on the ground that the counter was not filed and the E.P. Ordered. It has been submitted that the revision petitioner came to know about the order dated 30.04.2009 only on the reopening date and after verification of the A diary. Hence, the revision petitioner has filed the petition on the next day along with the counter. The petitioner has taken only one day to file the petition and the reasons for the delay in filing the petition has also been explained. 7. As such, it was contended that the Court below had failed to take note of the petitioners objection and the counter given by him and had erroneously passed an order dismissing the E.A. 8. The petitioner has taken only one day to file the petition and the reasons for the delay in filing the petition has also been explained. 7. As such, it was contended that the Court below had failed to take note of the petitioners objection and the counter given by him and had erroneously passed an order dismissing the E.A. 8. It has been contended that without giving him an opportunity, the matter was called in his absence and the exparte order was passed by the Court below on the reason of counter was not filed and E.P. is ordered. The learned counsel for the petitioner has contended that no prejudice will be caused to the respondent, if the petitioners counter filed along with his petition is heard and the matter decided on merits. But, on the contrary if this not done, the petitioner will be put to great hardship. 9. As such, it has been prayed by the learned counsel appearing for the revision petitioner to set aside the order of the lower Court made in E.A.No.166 of 2009 in E.P.No.77 of 2007 in O.S.No.686 of 1970 on the file of the District Munsif Court, dated 24.07.2009 and pass such other or further orders as is necessary. 10. In support of his contentions, the learned counsel appearing for the civil revision petitioner has cited the following Judgments made in (2008) 4 MLJ 1284 (Mad-NOC), High Court of Madras, Indira Iron and Steel Works and Others Vs. Age Impex International Inc. 10. In support of his contentions, the learned counsel appearing for the civil revision petitioner has cited the following Judgments made in (2008) 4 MLJ 1284 (Mad-NOC), High Court of Madras, Indira Iron and Steel Works and Others Vs. Age Impex International Inc. And Others, the relevant head notes of which are as follows: "Restoration of suit – Condonation of delay – Suit in question dismissed for default – Application for restoration of suit – Impugned order dismissing same – Appeal – Pragmatic approach to be made overriding technical considerations – There is sufficient cause for condoning delay in filing application – Reasons attributed by appellant/applicants sufficient for restoration of suit in question – Impugned order set aside." 2008 (1) CTC 785 , High Court of Madras, Ravi Enterprises v. Indian Bank, the relevant head notes of which are as follows: "Limitation Act, 1963 (36 of 1963), Section 5 – Condonation of delay – Principles governing – Court has to adopt pragmatic approach in matters regarding condonation of delay and deliver substantial justice overriding technical consideration – length of delay is immaterial – Bona fides of party cannot be held against him merely because Petition filed by him to set aside ex parte order was dismissed by default and Application to restore same was also dismissed – Delay condoned." 11. Learned counsel appearing for the first respondent argued that the revision petitioner has entered appearance in the E.P. Proceedings. As such, one more notice is not necessary to be sent to the revision petitioner after the matter has been remitted back to the Court from the Lok Adalat. The revision petitioner is well award that the matter was referred to the Lok Adalat. The learned counsel further argued that the case was initiated in the year 1970 and that the decree holder is an aged person. Further, the case has been disposed on merits. The revision petitioner has also been given ample opportunities to put forward his views before the E.P.Court also. There is no additional point or clarification needed in the present case. As such, the order passed by the learned District Munsif is fair. Further, the case has been disposed on merits. The revision petitioner has also been given ample opportunities to put forward his views before the E.P.Court also. There is no additional point or clarification needed in the present case. As such, the order passed by the learned District Munsif is fair. Supporting his case, he has cited the following Judgments made in AIR 2004 Madras 272, M.Ponnupandian v. Selvabakiyam, the relevant head notes of which are as follows: "Civil P.C. (5 of 1908), O. 21, R. 106 – Limitation Act (36 of 1963), S. 5 – Order passed ex parte under O. 21, R. 106 – Application to set it aside – S. 5 of Limitation Act not applicable. Section 5 of the Limitation Act, is not applicable to the petition filed for setting aside the orders passed ex parte under O. 21, R. 106 and the provision contained in sub-rule (4) of Rule 105 (Madras Amendment) is no longer in force." AIR 2005 SUPREME COURT 3460, Damodaran Pilli v. South Indian Bank Ltd., the relevant head notes of which are as follows: "(A) Civil P. C. (5 of 1908), O. 21, R. 106(3) – Restoration of execution application – Limitation – Starting point – Would be date of order dismissing execution application and not knowledge thereabout. C.R.P.No.1033 of 2002, D/- 22-7-2003 (Ker), Reversed. When an application is dismissed for default in terms of O. 21 R. 105, the starting period of limitation for filing of a restoration application would be the date of order and not the knowledge thereabout. As such applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed and that too without proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for default, the application for restoration thereof must be filed only within a period of thirty days from the date of said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. C.R.P.No.1033 of 2002, D/- 22-7-2003 (Ker), Reversed. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. C.R.P.No.1033 of 2002, D/- 22-7-2003 (Ker), Reversed. (B) Civil P. C. (5 of 1908), O. 21, S. 151; Limitation Act (36 of 1963, S.5 – Proceedings arising under O. 21 – Condonation of delay – Application of S. 5 of Limitation Act is expressly excluded – Thus in such proceedings inherent powers of Court cannot be invoked. The Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of S. 5 of the Limitation Act, the Court cannot invoke its inherent power. The application of S. 5 of limitation Act has been excluded in proceedings under O. 21 of the Code. Thus an application under S. 5 of the Limitation Act is not maintainable in a proceeding arising under O. 21 of the Code. A fortiori for the said purpose, inherent power of the Court cannot be invoked." 1987/C.R.P. 286 of 1985, Madras High Court, N.M.Natarajan v. Deivayanai Ammal and others, the relevant head notes of which are as follows: "C.P.C., O.21, R.90, and R.105(4), framed by the Madras High Court in exercise of the powers under S. 122, and which came into force on 4.9.1945, and Rr. 90 and 92, C.P.C. Amending Act 104 of 1976, and Limitation Act (1963), Ss.5 and 22 – Dismissal for default of an application for setting aside a court sale – Application for restoration with petition to excuse delay in filing u/s. 5 of Limitation Act, held, not maintainable – Madras Amendment 10 R 105(4) of O.21, C.P.C., no longer in force after the enactment of Amending Act 104 of 1976 – Change in position after enactment of S.5 of Limitation Act, 1908 – Overriding effect of 1963 Act – Invoking of S.5, Limitation Act, for setting aside ex parte orders passed u/Or.21, R.105 not possible – 92 L.W. 662 (V. Balasubramaniam, J.) Overruled, and 96 L.W. 542 (Mohan, J.) Approved. 1984, L.W. 214, Madras High Court, Ayappa Naicker v. Subbammal and another, the Honble Madras High Court has held as follows: "It is common case between the parties that it is only rule 105 of Order 21, Civil Procedure Code (Madras Amendment) which has been mistakenly quoted as rule 106 of Order 21, Civil Procedure Code (Central Code) in the order of the Courts below. It is in contradistinction to rule 105 that under rule 103 of Order 21, of the Madras Amendment sub-rule (4) states that the provisions of section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule. The amendment was prior to the Limitation Act of 1973. With reference to applications under Order 21, Civil Procedure Code there is the statutory bar in applying section 5 of the Limitation Act. It may also be relevant to note section 32 of the Limitation Act before it was repealed by Central Act LVI of 1974. It is stated under that section that the Indian Limitation Act, 1908, is hereby repealed. Therefore, after 1st January, 1964 sub-rule (4) of rule 105 of Order 21, Civil Procedure Code could no longer be applied, because of the express language of section 5 of the Limitation Act. That is why the Central Code in rule 105 of Order 21, Civil Procedure Code did not made any reference to the same saying that section of the Limitation Act would be applicable. The question of invoking inherent powers under section 151, Civil Procedure Code does not arise in this case. That is because of the specific provisions contained under rule 106 of Order 21, Civil Procedure Code. If, therefore, there is repugnancy between the Central Code under rule 106 and the Madras Amendment under sub-rule (4) of rule 105 of Order 21 it is section 97 of the Civil Proceduce Code in relation to repeal and savings that would apply. That says that any emendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall except in so far as such amendment of provision is consistent with the provisions of the principal Act as amended by this Act, shall stand repealed. The principal Act, namely Central Code, does not made section 5 of the Limitation Act applicable, while the Madras Amendment does make it applicable. The principal Act, namely Central Code, does not made section 5 of the Limitation Act applicable, while the Madras Amendment does make it applicable. Therefore to that extent there is repugnancy. There is yet another way of looking at the matter. Sub-rule (4) of rule 105 of Order 21, Civil Procedure (Madras Amendment) makes a reference only to the Indian Limitation Act, 1908. After it is repealed there is no possibility of applying the same." 12. After considering the facts and circumstances of the case, scrutiny of findings of the learned District Munsif, Poonamallee, arguments advanced by the learned counsel appearing on either side and the citations submitted in support thereof, the Court is of the view that the Order passed in E.A.No.166 of 2009 in E.P.No.77 of 2007 in O.S.No.686 of 1970, dated 24.07.2009 is correct for the following reasons: 1. In the E.P.Proceedings, the revision petitioner entered appearance on 06.10.2007. From this date onwards, he is well aware of the proceedings and as such the order passed by the District Munsif cannot be considered as an ex-parte order. 2. The Judgment and decree has been confirmed by this Honble Court in the Second Appeal No.700 of 1976. the same was executed by the executing Court ie.the District Munsif Court, Poonamallee. The revision petitioner has not pointed out any error or mode of execution of the decree. 3. The revision petitioner has not pointed out or stated the irreparable loss or hardship caused to him in the order passed in E.A.No.166 of 2009 in E.P.No.77 of 2009. 13. Considering that the decree had been passed for this suit initiated in the year 1970, after a period of 40 years, this Court is of the view that the respondent/plaintiff had been given the legal remedy after a long legal battle. Hence, the Court considering the facts and circumstances prevailing in the cause feels that there is no need to interfere in the said impugned order. 14. In the result, the above Civil Revision Petition is dismissed and the Order dated 24.07.2009 in E.A.No.166 of 2009 in E.P.No.77 of 2007 in O.S.No.686 of 1970,passed by the District Munsif Court, Poonamallee, Thiruvallur District, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.