Machireddi Narappa vs Proddatur Subbarayadu and Others

Krishnaswami Nayudu, J.—This civil miscellaneous second appeal arises out of proceedings taken in execution of a final mortgage decree.

The petitioner is the son of the judgment-debtor. The final decree was passed on 25-7-1932. The decree-holder died after the final decree and his

son, one Lingaaubbayya, appears to have filed three execution petitions, the first on 21-1-1936, the second on 20-1-1938 and the third on 31-1-

1941. The third execution application was dismissed on 21-2-1941. Lingasubbayya''s sons filed an execution petition on 29-1-19-14 which was

also dismissed on 24-2-1944. They again filed the present execution petition E. P. No. 366 of 1944, on 24-7-1914, just a day previous to the

expiry of the 12 years period from the date of the final decree.

The present execution petition was signed and verified by Lingasubbayya''s sons and was also counter-signed by one Mr. C. S. Narasimha

chariar as vakil for the decree-holder, Veerasub-bayya. Mr. Narasimhachariar had no vakalat for Lingasubbayya''s sons, the legal representatives

of the decree-holder. Mr. Narasimhachariar''s son, Mr. Srinivasachariar, however, who was working with his father had a vakalat for the

respondents who are the legal representatives of the decree-holder. Objection was taken to the validity of the said execution petition on the ground

that the execution petition was presented by a counsel who had no vakalat for the respondents and that, therefore, it was a nullity. It may be

mentioned that subsequent to the filing of the petition, which was on 24-7-1944 a vakalat was filed by Mr. Narasimhachariar and also by another

counsel but that was done on 6-7-1946 after the expiry of 12 years from the date of the final decree. It was contended that the subsequent filing of

the vakalat, in any event, could not cure the defect, if any, in the presentation of the execution petition. Not content with the objection raised to the

issue of the execution, the appellant filed E. A. No. 139 of 1946 in E. P. No. 366 of 1944 u/s 47, Civil P. C. praying that no execution be issued

for realising the amount in pursuance of the final decree in O. S. N. 534 of 1930. This application was heard along with the execution petition and

both the Courts have held that the presentation of the execution petition without a vakalat was only an irregularity and not an illegality which

invalidated the proceedings and that irregularity having been subsequently set right by the filing of a vakalat, the defect in any event had been set

right, and that the execution petition must, therefore, be deemed to have been presented properly on the date when it was presented, and allowed

execution to issue.

The decision in Nandamani Ananga Bhima v. Sri Modono Mohono Deo, 71 M. L. J. 604 ; A. I. R. 1937 Mad. 239 is relied upon by the

counsel for the appellant in support of his contention that E. P. No. 366 of 1944 not having been presented by a counsel duly authorised in writing

on behalf of the respondents could not be said to be a valid presentation inasmuch as the act of the counsel in presenting the execution petition was

a mere nullity, and that there, fore, no order could be passed on the execution petition which has not been validly presented. The provision in the

CPC which governs the filing of execution petitions is Order 21, Rule 11 which lays down that in respect of a decree for payment of money an oral

application of the decree-holder at the time of the passing of the decree may be made and if it is otherwise under Clause (2) it is provided that

every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some the person proved to the

satisfaction of the Court to be acquainted with the facts of the case and shall contain the particulars mentioned in the said sub-clause. The rule is,

however, silent as to by whom the filing or presentation of such a written application should be. With reference to plaints, Order 4, Rule 1, Civil P.

C. states that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in its behalf. Though in respect of plaints

there is provision for presentation to the Court or to the officer, even that is absent with reference to execution applications as provided for in

Order 21, Rule 11. With reference to suits and appeals by paupers, Order 33, Rule 3 and Order 44, Rule 1 mention that they have to be

presented by the party in person. No such specific manner of presentation is indicated with reference to either plaints or execution petitions. In

respect of an execution petition even an oral application can be made, but if it is to be in writing, it must ba signed and verified by the applicant and

should contain particulars enumerated in Clause (2) of Order 21, Rule 11.

In the present case, a written execution petition was filed and it cannot be disputed, though it was contested at a late stage that there was nothing

to show that at the time of the presentation the party was not present, thereby suggesting that the presentation could have been made by the party,

in which case the question of invalidity of presentation would not arise, that the presentation was by Mr. Narasimhachriar who had a vakalat for the

decree-holder alone but not a vakalat for the present respondents. The question is whether such presentation is invalid as rendering the execution

petition so presented as having no legal effect. Order 3, RULE 1 states :

Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may except

where otherwise expressly provided by any law for the time being in force, be made or done by the party In person, or by his recognised agent, or

by a pleader appearing, applying or acting, as the case may be, on his behalf

and Rule 4 relates to appointments of pleaders and provides that every appointment should be in writing signed by the party or his agent and that

such appointment shall be filed in Court, It is therefore contended that Mr. Narasimhachariar was not entitled to act without a written authority, that

is, a vakalat, and he was therefore not a person who can be said to represent the party in respect of the act of presentation of the execution

petition within the meaning of Order 3, Rule 1. The position therefore is that the execution petition was presented by a person who was not duly

authorised in writing as required under the procedure laid down and it is for consideration whether such a presentation has invalidated the

execution petition and the Court has become incompetent to pass any orders on such presentation.

The Code does not lay down any specific provision with reference to the presentation of an execution petition as already pointed cut. But it must

be assumed that the presentation of the execution petition or any other proceeding in Court must be by the party, in the ease of a plaint by the

plaintiff or in other cases by the petitioner, and in his absence by a person who is authorised to represent him. It cannot be denied that Mr.

Narasimhachariar had the authority from the respondents to act for them, though such authority was not reduced to writing in the shape of a

vakalat at the time of the filing of the petition. The provision of Order 3, Rule 1 has been introduced in the interests of a plaintiff or petitioner to

avoid the practising of any fraud by third parties by seeking to represent persons, though not authorised to do so. Once it is shown, as in this cage,

that Mr. Narasimhachariar was questioned (requested?) to represent the respondents which could be further supported by the filing of the vakalat

by Mr, Narasimhachariar for the respondents subsequently, and due to a bona fide mistake that the vakalat was not filed in the first instance which

was complied with subsequently before final orders were passed on the execution petition, it cannot be said that the presentation was not proper

or illegal going to the root of the validity of the petition. A similar question arose before the Allahabad High Court recently and under almost

identical circumstances in the Full Bench case in Kanhaiya Lal Vs. The Panchayati Akhara, where it was held that an application for execution

which, in all other respects, is in order and which has been admitted and registered by the execution Court is not to be considered to have not been

made in accordance with law"" merely because it was handed over to the officer of the Court by a pleader who had not got a vakalatnama from

the decree-holder and that the improper presentation of such an application was, however, not an illegality but a mere irregularity which did not

make the application not ""made in accordance with law."" I am in entire agreement with this conclusion of the Full Bench of the Allahabad High

Court. With reference to a similar question which arose, where it was a ease of presentation of a plaint and not an execution application, a Special

Bench of the Allahabad High Court took a similar view in the case reported in Wali Mohamed Khan v. Ishak Ali A. I. R. 1931 ALL. 507 : 54

ALL. 67 . Sulaiman Ag. C. J. who gave the opinion of the Bench observes as follows at p. 511.

If the legislature had intended that the absence of the presentation of the plaint by the plaintiff or by some person duly authorised by him would

altogether oust the jurisdiction of the Court the language used would have been definite and specific. Instead of that, Section 26 merely provides

that every suit shall be instituted by the presentation of a plaint or in such ether manner as may he prescribed, without saying in express terms that

the presentation should be by the plaintiff or his duly authorised agent. As there is no specific rule either requiring or expressly authorising the

plaintiff to present the plaint it is doubtful whether Order 3, Rule 1 of the Code would apply to such a case. If it does not apply, the presentation by

a person orally authorised to do so would be valid. But even if, it does, we are clearly of opinion that the omission to comply with this provision

would be a mere irregularity and not an absence of jurisdiction. The Court receiving a plaint which has not been property presented would have

jurisdiction to dismiss it and pass orders on it. It would not be acting without jurisdiction if it did so. We do not mean to imply that a plaintiff has the

right to get his plaint presented by a man in the street. If the person presenting it was not properly authorised the presentation would be irregular.

The Court would then have the discretion to allow the irregularity to be cured or not. If the plaintiff has acted in good faith and without gross

negligence, and it is fair and just to allow the defect to be cured, the Court would undoubtedly do so. It is not absolutely helpless in the matter.

There is also a Bench decision of the Bombay High Court in Hirabai Gendalal Vs. Bhagirath Ramchandra and Company, , which takes a similar

view as that of the Allahabad High Court. It was a case of a plaint and it was held that the failure to comply with the provisions relating to the

presentation of plaint is a mere irregularity so that if the person presenting it is not properly authorised to do so, the presentation is irregular but

does not oust the jurisdiction of the Court and that the Court would have jurisdiction in such a case to permit the irregularity to be cured and that

the suit must be deemed to have been filed when it was first instituted.

I am in general agreement with the observations of Sulaiman Ag. C. J. in Wali Mohamed v. Ishak Ali A. I. R. 1931 ALL. 507: 54 ALL. 67

excepting that it cannot be said that Order 8, Rule 1 could not be applicable to the case in question. But, however, I am of opinion that the

omission to comply with the provisions is a mere irregularity and does not amount to absence of jurisdiction. There is no contravention of any

specific provision of law relating to the filing of the execution petitions as there is nothing in Order 21, Rule 11 (2) which requires the petition to bo

presented by a particular person or in a particular manner. In the absence of such a provision a presentation in the manner as has been done in this

cage could only be said to be a mere irregularity and would not amount to an absence of jurisdiction or to be in express contravention of law. In

this case however, both the Courts have very rightly held that there has been a bona fide mistake which was subsequently rectified by the

presentation of a vakalat. The Court finding that there has been a bona fide mistake received the vakalat and registered the execution petition.

What was a formal defect in procedure was subsequently rectified, and having done so there could be no reason why it should not be held that the

execution petition was properly presented on the date when it was presented. Once it is held that the presentation in the circumstances was a

formal defect and an irregularity and not an illegality, the fact of the filing of the vakalat on 6-7-1946 after the period of 12 years provided u/s 48,

Civil P. C. would not affect the positions since the filing of the execution petition having been made within the period of limitation subject to any

formal defect had been rectified subsequently, the petition must be held to have been in time. In support of this position, reference may be made to

the decision of the Privy Council in Mohini Mohandas v. Bungsi Budan Sah, 17 Ca1. 580. In that case, three suits were filed by one of three joint

creditors, the others being named as co-plaintiffs with him in the plaints but the plaint was signed by him alone and not by the other two joint

creditors and there was nothing to show that the other two creditors repudiated the suite oven though it purported to have been on behalf of the

three creditors but signed only by one of them. The question was whether the other plaintiffs must be considered to have been plaintiffs, in the

circumstances, from the beginning or from the date when certain orders intended to cure the defects wore passed. Their Lordships held that the

other two plaintiffs became parties to the suits from the time the plaints were filed and that the suits were not barred by lapse of time though by the

time the defect was cured limitation bad set in so far as the other two plaintiffs were concerned. This appears to me to be farther authority for the

position that the mere fact that the absence of signatures and verification of some of the plaintiffs to a plaint where they had a common interest did

not affect the jurisdiction of the Court and did not render the entire proceeding as illegal, and that they ace only defects in procedure which could

be rectified subsequently, and did not render the proceeding initially invalid.

The Bench decision of this Court in Kannathazha Pakran and Others Vs. Puthalath Amina Umma and Another, , is BASED on different set of

facts. In that case the point that arose for decision was whether the decree-holder applied in accordance with law for execution when he filed the

execution petition in 1923. The previous execution petition was in 1920 and the subsequent execution petition was in 1925, The question that

arose was whether the 1923 petition was made in accordance with law to the proper Court for execution within the meaning of Article 179,

Limitation Act corresponding to the present Article 182 (6) Limitation Act. The 1923 execution petition was presented by a pleader who had no

vakalat, and therefore, if it was held that that petition was a nullity, the 1925 petition should be barred. But the 1923 execution petition was

withdrawn and dismissed. Burn J. who delivered the judgment of the Bench after referring to Order 3, Rule 4 referred to the contentions of the

respondent as being that the act of the pleader in presenting the execution petition was a mere nullity and that it was not a question of a defect in

the pleader''s authority, or a question of an irregularity, or even of an illegality in anything that the did but it was a question of want of capacity to

act and agreed with the said contentions of the respondent. With reference to the contention of the appellant in that ease, that such execution

petitions, having been admitted by the Court and action having been taken by the issue of notices to judgment-debtors and adjourning them for

several days, could not, after all that has been done, be treated as mere waste paper, or as if they had not been presented at all, the learned Judga

observed that that argument would have great force if anything had really been done upon those execution petitions but the and of them was that

they were withdrawn and were accordingly dismissed without execution having really taken place. In that case no vakalat was filed before its was

withdrawn and dismissed and the Court was, therefore, not called upon to consider whether the subsequent filing of the vakalat could have

rectified the defect if any in the presentation, and the execution petition, having been withdrawn and dismissed and taken off the file without a

vakalat and the petition having admittedly been presented by a person who had no authority and finally the same having been withdrawn and

dismissed, it could not therefore be said that that execution petition could save the bar of limitation as having been filed in accordance with law

under the present Article 182 (5), Limitation Act. When the 1935 petition was considered, the 1923 petition had become closed and disposed of

as dismissed since it was withdrawn, it being indisputably a petition not properly presented and any impropriety on irregularity in the presentation

not having been rectified and in 1925 such defect was impossible of being cured or rectified. I am therefore, of opinion that the decision proceeded

on a different set of facts though the learned Judges observed that the presentation of the execution petition was a mere nullity. From the other

observations of the learned Judges and the fact that no vakalat was subsequently filed to rectify it it cannot be stated that the learned Judges would

not have come to a different conclusion if, during the pendency of the 1923 petition, a vakalat was filed and the Court accepted it; and its is

doubtful whether the learned Judges would still have held that the presentation was a nullity. In that case there was no scope for rectifying, as the

petition was closed and the question whether rectification of what ought to have been did not arise. I therefore feel that the decision, would not

apply to the present case.

I therefore hold that the presentation of the execution petition is valid and execution has rightly been issued by the lower Court. The appeal

therefore fails and is dismissed with costs. No leave.