JUDGMENT : This is an application under Article 227 of the Constitution of India read with section 151 of the Code of Civil Procedure challenging the order dated 06.12.2013 passed by learned District Judge, Cachar at Silchar dismissing the Misc. Appeal No. 3/2011 of this court thereby affirming the judgment and order dated 08.03.2011 passed by learned Civil Judge No. 1, Cachar at Silchar in Misc. Case No. 46/2010 arising out of Title Execution No. 5/2008. By that order, the learned first appellate court held that the application filed by the petitioner under Order XXI Rule 106 was barred by limitation and the learned Executing Court did not commit any mistake in rejecting the application on that ground. 2. The brief facts involved in the revision petition are required to be stated at the threshold for the purpose of understanding the points involved. The opposite party No. 2 in the present petition is stated to have entered into an agreement for sale of a plot of land measuring 3 katha to the opposite party No. 2 on 11.11.2003 by executing a written agreement. The opposite party No. 1 thereafter instituted Title Suit No. 70/2005 for a decree of specific performance of contract against the opposite party No. 2. The suit was decreed on 24.02.2006 and the opposite party No. 1 put the decree into execution vide Title Execution No. 5/2008. At this stage, the present petitioner, as plaintiff, instituted a fresh title suit being T.S. No. 146/2008 asking for a decree of specific performance against same opposite party No. 2 claiming that the opposite party No. 2 had entered into an agreement for sale of the same plot of land to him by another written agreement dated 09.10.2000 at a consideration of Rs. 1,50,000/-. The opposite party No. 2 is alleged to have received Rs. 1,30,000/- as advance and only Rs. 20,000/- was to be paid at the time of execution and registration of sale deed. As the opposite party No. 2 did not execute sale deed in his favour, he instituted the suit for specific performance of contract. By that time, Title Execution No. 5/2008 was proceeding. The present petitioner, therefore, filed an application under Order XXI Rule 26 of the CPC before the Executing court praying for stay of execution by making mention about the subsequently instituted T.S. No. 146/2008. By that time, Title Execution No. 5/2008 was proceeding. The present petitioner, therefore, filed an application under Order XXI Rule 26 of the CPC before the Executing court praying for stay of execution by making mention about the subsequently instituted T.S. No. 146/2008. The learned Executing court rejected the application against which an application under Article 227 of the Constitution of India was preferred before this court and this court disposed of the revision petition giving liberty to the present petitioner to file an appropriate application before Executing court. Under such circumstances, petitioner submitted an application under Order XXI Rule 97 of the Code of Civil Procedure before the Executing court in Title Execution No. 5/2008 and staked claim of right to the suit land. This application was registered as Misc. Case No. 43/2009. This decree holder submitted objection in this application but at this stage on 27.11.2009, the petitioner remained absent without any step for which the Misc. Case stood dismissed for default and stay order dated 23.09.2009 granted earlier was 3. Aggrieved by the aforesaid order of the learned Executing court, the present petitioner preferred Misc. Appeal No. 3/2011 before the learned Additional District Judge, Cachar at Silchar. The first appellate court after hearing the parties, upheld the finding of the learned trial court insofar as it relates to the bar of limitation is concerned. The learned senior counsel on behalf of the petitioner argued before the first appellate court that the period of 30 days has to be counted from the date of knowledge under Order XXI Rule 106(3) of the Code of Civil Procedure and the petitioner specifically pleaded that he had recently come to know about the order. The learned first appellate cournt considered this prayer and then held that question of counting period of limitation from the date of knowledge would arise only if such an order is passed ex-parte without there being due service of notice. Thereafter, the learned first appellate court held that in the absence of an application under section 5 of the Limitation Act, the learned Executing court did not commit any error in rejecting the application under Rule 106. This judgment and order passed on 06.12.2013 has been called in question in the present revision petition. 4. Thereafter, the learned first appellate court held that in the absence of an application under section 5 of the Limitation Act, the learned Executing court did not commit any error in rejecting the application under Rule 106. This judgment and order passed on 06.12.2013 has been called in question in the present revision petition. 4. On 04.04.2014 when this matter came up for admission hearing before this court, a question came up as to whether there is scope for condonation of delay in restoring an application dismissed under Order XXI Rule 97 of the Code of Civil Procedure. This court requested Mr. GC Phukan, a learned senior member of the Bar who was present in the court, to assist the court to find an answer to the question. He was accordingly appointed as Amicus Curiae and the learned counsel readily agreed to assist this court. This court keeps on record the valuable assistance rendered by the learned senior member at the request of the court. 5. I have heard Dr. B Ahmed, learned counsel for the petitioner, Mr. GC Phukan, learned Amicus Curiae and Mr. B Banerjee, learned senior counsel assisted by Mr. A Dey, for the opposite party No. 1. None appears for the opposite party No. 2. I have gone through the two orders passed by the learned courts below. 6. Dr. B Ahmed, learned counsel for the petitioner would argue that the Misc. Case No. 43/2009 was instituted by engaging a learned counsel who was taking steps all along. But when the application came up for hearing on 27.11.2009, the learned counsel did not take any step and remained absent but for which the same was dismissed for default. The petitioner was not informed about the dismissal of the miscellaneous case. Subsequently, somebody from court informed him that the original execution proceeding has started again and then he made enquiry by engaging a different counsel only to know that his Misc. Case No. 43/2009 had been dismissed for default on 27.11.2009. Under such circumstances, he filed an application under Rule 106 of Order XXI of the Code of Civil Procedure for setting aside the ex-parte order dated 27.11.2009 and for restoration of Misc. Case No. 43/2009. According to him, the date of limitation should run from the date he came to know about the order dated 27.11.2009. 7. Mr. Under such circumstances, he filed an application under Rule 106 of Order XXI of the Code of Civil Procedure for setting aside the ex-parte order dated 27.11.2009 and for restoration of Misc. Case No. 43/2009. According to him, the date of limitation should run from the date he came to know about the order dated 27.11.2009. 7. Mr. GC Phukan, learned Amicus Curiae as well as Mr. B Banerjee, learned senior counsel would argue, on the other hand, that there is no question of knowledge in the present case. The Misc. Case No. 43/2009 was instituted by the present petitioner himself and it was dismissed for default. Date of knowledge as mentioned in Order XXI Rule 106(3) of the Code of Civil Procedure relates to only to those ex-parte orders which were passed without serving notice on the aggrieved person. Here in this case, there is no question of notice because the petitioner himself was the petitioner and so that part of Rule 106(3) of Order XXI cannot arise. The learned Amicus Curiae as well as learned senior counsel has placed reliance on a judgment of the Hon’ble Supreme Court in this regard in the case Damodaran Pillai & ors. v. South Indian Bank Ltd. reported in (2005) 7 SCC 300 . This judgment has been pressed into service only to show that there is no question of condoning delay in proceeding under Order XXI of the Code of Civil Procedure. Perhaps, this is in view of the fact that the learned first appellate court stressed on the point that petitioner did not file an application under section 5 of the Limitation Act. I have perused the judgment of the Hon’ble Supreme Court in the case of Damodaran Pillai & ors. (supra). 8. In the aforesaid case, the appellant before the Supreme Court filed an application under Order XXI Rule 97 of the Code of Civil Procedure before the Executing court and it was also dismissed for default on 01.11.1990. The application for restoration was thereafter filed on 04.04.1998 on the ground that the plaintiff came to learn about the impugned order only on 25.03.1998. Thus, there is similarity of the facts of the present case with the aforesaid reported judgment. The application for restoration was thereafter filed on 04.04.1998 on the ground that the plaintiff came to learn about the impugned order only on 25.03.1998. Thus, there is similarity of the facts of the present case with the aforesaid reported judgment. The Hon’ble Supreme Court held in the aforesaid case that an application dismissed for default in terms of sub-Rule 2 of Rule 105 can be recalled for restoring an application under section 106 and in that event, starting point of limitation for filing of the restoration application would be the date of the order and not the knowledge thereabout. The applicant in that reported case was represented in the proceeding all along by his Advocate and his knowledge of the order was presumed. Paragraphs 11 to 16 of the aforesaid judgment are quoted below for ready reference. “11. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of Sub-rule (3) of Rule 106. A bare perusal of the afore-mentioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a restoration application would be the dale of the order and not the knowledge thereabout. As the applicant is represented in the proceeding though his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of 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 the said order and not thereafter. In that view of the mater, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant. 12. We may notice that the period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the Limitation Act, 1962. 13. 12. We may notice that the period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the Limitation Act, 1962. 13. It is also not in dispute that the Kerala amendment providing for application of Section 5 of the Limitation Act in Order XXI, Rule 105 of the Code became inapplicable after coming into force of the Limitation Act, 1963, (Act LVI of 1964). 14. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence or applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power. 15. It is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. 16. An application under Section 5 of the limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the matter, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.” 9. In the present case, the learned first appellate court has rightly held that Rule 106 of Order XXI has two parts. The first part deals with the ex-parte orders in general. The second part relates to only those cases where an ex-parte order has been passed against someone without duly serving notice on him. In the second part only, the question of filing application within 30 days from the date of knowledge is provided. So far as the first part is concerned, application has to be filed within the period of 30 days from the date of order. After passing of the judgment by the Hon’ble Supreme Court in regard to second part of Rule 106(3) of the Code of Civil Procedure, there is no scope to uphold the argument of Dr. B Ahmed that limitation would start from the date of knowledge in the present case. After passing of the judgment by the Hon’ble Supreme Court in regard to second part of Rule 106(3) of the Code of Civil Procedure, there is no scope to uphold the argument of Dr. B Ahmed that limitation would start from the date of knowledge in the present case. This is because the present petitioner was the applicant before the Executing court and his application having been dismissed for default for some or other reason, there was no question of service of notice on him. The second part of Rule 106(3) of the Code of Civil Procedure, therefore, would not apply to the present case and limitation has to start from the date of passing of the order only. The point is no longer res integra in view of the judgment of the Hon’ble Supreme Court in the case of Damodaran Pillai & ors. (supra). This being the position, the sole argument of Dr. B Ahmed in support of the petitioner in this case cannot be countenanced. 10. The learned first appellate court though rightly upheld the order of the learned trial court but was not correct in holding that in the absence of an application under section 5 of the Limitation Act, there was no scope to condone the delay. This is because Section 5 of the Limitation Act is not maintainable in the present case. This is a proceeding under Order XXI of the Code of Civil Procedure and Section 5 of the Limitation Act has been expressly excluded from Section 5 of the Limitation Act itself. Section 5 says that any appeal or any application other than application under any of the provisions of Order XXI of the Code of Civil Procedure may be admitted after prescribed period on satisfaction that there was sufficient cause for not preferring the appeal or filing the application in time. Section 5 specifically shows that it is not applicable to an application under any of the provisions of Order XXI of the Code of Civil Procedure. Order XXI is a code in itself. Rule 106(3) lays down a period of limitation in the provision and it also provides for condoning delay and that too, within a period of 30 days. Since it has been specifically provided in the code the applicability of sections 4 to 24 of the Limitation Act would be excluded by section 29 of the Limitation Act itself. Rule 106(3) lays down a period of limitation in the provision and it also provides for condoning delay and that too, within a period of 30 days. Since it has been specifically provided in the code the applicability of sections 4 to 24 of the Limitation Act would be excluded by section 29 of the Limitation Act itself. Section 5 of the Limitation Act, therefore, would not apply in condoning delay in filing application under any of the provisions of Order XXI of the Code of Civil Procedure. The learned first appellate court committed error in this regard, though ultimately order was correct. 11. Having noted the submissions of the learned counsel for the parties and on perusal of the materials on record, this court does not find merit in the present revision petition. It is accordingly dismissed. 12. Interim order, if any, stands automatically vacated. 13. No order as to costs.