P.C. Muthu Chettiar vs Narayanan Chettiar and Others

Srinivasa Aiyangar, J.—For a proper understanding of the various points raised and discussed in this Civil Revision Petition it is necessary

that a few material facts should be set out. The petitioner before us obtained a decree in O.S. No. 14 of 1908 on the file of the Subordinate

Judge''s Court of Madura East. It was a decree for money and dated 25th February, 1908. After various execution petitions with which we are

not at present concerned E.P. No. 36 of 1920 was filed on the 23rd February, 1920, that is to say, a few days before the expiry of 12 years, the

time limited for execution of decrees under the Procedure Code. On the 27th September, 1921 final orders were passed on certain claims made in

respect of attachment issued in execution and on that date a further order was made in the following words : ""Sale papers to be filed by 11th

October, 1921."" Somehow or other, on the forenoon of 11th October, 1921 this execution petition appears to have been called and, in the

absence of the execution creditor and his vakil, an order was made by the Subordinate Judge in the following terms : ""not filed, dismissed."" On the

same day an application to restore this petition to file was made on behalf of the execution petitioner supported by an affidavit of the vakil''s clerk

and an order was made by the Subordinate Judge restoring the petition to the file, setting aside the order of dismissal but without any notice of such

application to the opposite side.

On the same day, 11th October, 1921, another application E.A. No. 396 of 1921 was made by the execution petitioner for the purpose of

allowing him to carry out certain amendments in the execution petition. Notice was issued in respect of this execution application for amendment of

the petition, and when it came on for hearing objection was taken on behalf of the judgment-debtor to the order previously passed restoring the

execution petition once dismissed. The learned Subordinate Judge gave effect to this objection and held that the order of restoration was wrongly

made, and he thereupon not only dismissed the execution application for amendment but also made an order that the execution petition was

dismissed. Against this A.S. No. 153 of 1922 was preferred to the District Court. The learned District Judge reversed the order of the learned

Subordinate Judge holding that the order for restoration was properly made and that, therefore, the application for amendment should be

remanded to the lower Court for disposal in the ordinary course. He also made a further order setting aside the order of dismissal of the execution

petition made by the Subordinate Judge.

Against this the judgment-debtor preferred Appeal against Appellate Order 63 of 1924 to this Court. The judgment of this Court in that case is

reported in Narayana Chettiar and Another Vs. P.C. Muthu Chettiar and Others, . This Court came to the conclusion that the application for

restoration was incompetent either under Order 9 of the CPC or under the review section or even u/s 151 of the Procedure Code. In the result,

therefore, this Court reversed the order of remand made by the District Court and confirmed the order made on the application for amendment by

the learned Subordinate Judge. The Civil Revision Petition before us was presented on the 6th March, 1926 for the purpose of revising the order

of dismissal of the execution petition made on 11th October, 1921.

The first objection that has been urged with regard to the competency of this Civil Revision Petition is that subsequent to the order of dismissal

passed by the Subordinate Judge there was another order of dismissal passed by the same Subordinate Judge on the 14th March, 1922, that that

order should be deemed to have been finally restored by the decision of this Court above referred to and that, therefore, the petitioner could not

reasonably ask for this Court revising an earlier order of dismissal when a subsequent order of dismissal has been restored by this Court. It is

difficult to accept the contention that the subsequent order of dismissal by the Subordinate Judge was really a judicial order on any question raised

or contentions made before him with regard to the execution petition. When he came to the conclusion that the order of restoration was wrong, it

necessarily followed that the previous order of the Court dismissing the execution petition stood and, therefore, the order of dismissal by the

Subordinate Judge, on the 14th March, 1922, merely amounted to a confirmation of the previous order, or, in other words, a declaration that by

reason of the order for restoration being set aside the previous dismissal stood. However, when this matter came up on appeal before the District

Judge, he not only took the view already adverted to, but made a distinct order setting aside this order of dismissal made by the Subordinate

Judge. No appeal specifically was taken with regard to that order by the judgment-debtor to this Court, and there is no discussion at all with

regard to it in the judgment of this Court. We have also sent for formal order passed by this Court on the judgment, and it is clear there from that

what the Court did was merely to cancel the order of remand and confirm the dismissal of the application which was made for amendment. It could

no doubt be argued that, as the order of the Subordinate Judge subsequently dismissing the execution petition has been set aside rightly or wrongly

by the District Judge and as that order has not till now been disturbed it follows that the execution petition is still pending. But there seems to be no

doubt whatever that even what the District Judge did do or did purport to do was only again to declare the result of his findings with regard to the

restoration application on the order of dismissal of the execution petition originally made by the Court on the 11th October. As he took the view

that the order of restoration was proper we must construe this order setting aside the later order of dismissal by the Subordinate Judge only to

amount to a declaration that as the order of restoration was proper the subsequent order of dismissal should be set aside. If that is the true view

there can be no question at all of any subsequent order of dismissal being operative after all these proceedings and appeals. We must, therefore,

take it that the state of things at present is the subsistence of the order of dismissal of the 11th October, 1921, and it is that order which this Court

is now invited to revise and set aside.

The next objection to the maintainability of this Civil Revision Petition is naturally the fact that it has been presented to this Court considerably

over four years after the order was made. In this case we are asked to exercise the revisional jurisdiction of this Court, and it may at once be

pointed out that though as a matter of practice this Court exercises the jurisdiction only on the application of the parties the jurisdiction itself is not

confined to such cases. Again when this Court made a conventional rule to the effect that such Civil Revision Petitions should be filed within the

same period as appeals, namely, 90 days, it was not on any ground that the period of limitation was so fixed for the purpose of filing Civil Revision

Petition, but as it is a revisional jurisdiction and therefore within the discretion of the Court, the Court said it would not consider a Civil Revision

Petition filed after that date. The question therefore becomes necessary to be so considered whether in this case, having regard to the lapse of the

long period, the Court would be justified in interfering with the order under consideration. Even if it is not a mere Civil Revision Petition but an

appeal, there seems to be little doubt that, having regard to all the circumstances of the case the petitioner would as appellant be entitled to ask the

Court to exclude from computation the whole of the period taken up by him from almost the 10th October, 1921, till about the very date on which

the Civil Revision Petition has been filed in prosecuting the various proceedings and appeals therefrom which had for their clear object the

restoration of the execution petition which was dismissed. It is true that the ground on which the restoration was sought or the order of restoration

that was made was sought to be sustained was not the same as here. But there can be no doubt that the relief was the same. It cannot be

suggested that the petitioner was either guilty of any laches or negligence in the matter, when we find him throughout the period engaged in

prosecuting or defending the proceedings which had for their object the very thing for which he has now filed this petition. No doubt it is an

exceptional case and must be treated so. The question therefore of the mere lapse of time, it seems to us, cannot be taken into consideration and

the objection therefore must be rejected.

The learned vakil for the petitioner argued that the order made on the 27th September being to the effect that the sale papers should be filed by

the 11th October, 1921, the execution petitioner had time till the end of the 11th for the purpose of filing such papers, and that, therefore, the

Court acted without jurisdiction and at any rate with material irregularity in calling up the petition on the forenoon of that date and dismissing it on

the ground that the order previously made had not been complied with. Though this construction of the order was strenuously opposed by the

learned Counsel for the respondent, it seems to us that the matter was not even open to argument. The expression ""by"" clearly indicates the utmost

limit of time being the end or the expiry of the date or period indicated. We have been referred to Murray''s New English Dictionary and there we

find that it is clearly pointed out that the word ""by"" when used with reference to time indicates either ''in the course of or ''on''. The word ""by

therefore must be construed in the same manner as ""on or before"". If that is the proper construction, as we hold it to be, it is clear that the Court

was not entitled to call up the case on the forenoon of the very day the whole of which the petitioner had for the purpose of complying with the

order of Court. There could possibly be no default on the part of the petitioner if at any rate he had the other remaining hours of the day for the

purpose of complying with the order.

The learned Counsel for the respondent also strenuously contended that the order was read and understood by the execution petitioner himself

and also by his legal advisers as meaning or intimating that the sale papers could be filed on or before the previous date, namely, the 10th October.

We are not satisfied that that was really how the order was understood by the petitioner. It cannot be said that the mere reference to the order for

the purpose of restoration can be regarded as indicating the meaning that they attached to the expression. After all what we have to do is not really

to see how the parties understood but what the order of Court really means. There is also no foundation for the contention that was put forward

that the 11th October, 1921, was the date to which the hearing of the execution application itself stood adjourned. There is nothing in the records

or even in the B diary to show that the hearing of the petition stood adjourned to that date. In view of these considerations we think that the order

of the Subordinate Judge dismissing the execution petition on the forenoon of the 11th October was wrong.

One last argument was also advanced by the learned Counsel for the respondent and that was that it was open to the petitioner before us, the

execution creditor, to have made this wrong construction of the order not only a ground in his application for restoration but also a ground of

defence on appeal to this Court. The subject-matter of the application on which the order for restoration was made was the default to appear of

the party and all the Courts since then till the final order on appeal to this Court were concerned merely with investigating the question whether the

Court had jurisdiction, once the execution petition was dismissed, to restore it under any one of the provisions of law which might be regarded as

in any manner applicable thereto. If no doubt this point had been made a ground, of attack or defence at any time and the matter was adjudicated

previously it would not be open to the petitioner now to come up on revision. There is absolutely no indication anywhere throughout all these

proceedings of this matter having been discussed or considered. The mere fact that the question now raised is capable of being regarded as an

afterthought seems to us to be really no objection to the maintainability of the petition, if otherwise we should be satisfied that the order now under

revision was clearly wrong and unsustainable. This Court having held in the decision above referred to that the application for restoration was not

competent under Order 9 of the CPC or under the review section or even u/s 151 of the Procedure Code so far at least as the present case is

concerned, the decision is final and conclusive though we may take leave to observe in this connection that, if the same question should arise in

some other case, the decision of the learned Judges in that case might require reconsideration.

The result of holding that even though an execution application for a large amount might come to be dismissed by the first Court for non-

appearance or for failure to put in some paper or some such formal defect the Court has absolutely no power at all to set aside the order of

dismissal under any provisions of law would be virtually to hold that a person by some such small inadvertence would be entirely losing the benefit

of a decree passed in his favour by a Court of law. Anyhow in this case as we are satisfied that the order of the 11th of October was clearly wrong

and was made without jurisdiction it follows that it must be set aside. We accordingly direct that the order of dismissal of E.P. No. 36 of 1920,

dated 11th October, 1921 be set aside and the execution petition restored to file and disposed of in the usual course. Having regard to the long

period of time that has elapsed between the date of the order now under revision and this present revision petition we direct each party to pay and

bear his or their own costs.