R.T. Kesavuloo vs The Official Receiver and Another

Venkatasubba Rao, J.—This is an appeal from an order allowing execution. The execution petition with which we are concerned, was filed

on 15th January, 1934. The question is whether or not it was barred by limitation. The judgment-debtor attacks the view of the lower Court that it

was filed in time.

The decree was passed on 24th January, 1922 and nine execution petitions preceded the present petition. The petitions and the orders made

thereon are given below:

E.P. Filed on 1-2-1922 Order D/23-2-1922

Batta not paid. Dismissed"".

E.P. Filed on 3-3-1922 Order D/11-3-1922

praying for the ""Transfer"".

transfer of the

decree to the

Madras Small

Cause Court.

E.P. Dated 29-4-1924. Order D/30-4-1924

Returned"" (for satisfying cer-

tain conditions).

E.P. Filed on 24-10-1924. Order D/30-10-1924

Returned"" (for satisfying cer-

tain conditions).

E.P. Filed on 8-4-1926. Order 12-4-1926

Returned"" (for satisfying cer-

tain conditions).

E.P. Filed on 3-9-1926. Order D/7-9-1926

Returned"" (for satisfying cer-

tain conditions).

E.P. Filed on 25-3-1927. Order D/8-4-1927

Returned"" (for satisfying cer-

tain conditions).

E.P. Filed on 27-7-1929. Order D/9-8-1929

Returned"" (for satisfying cer-

tain conditions).

E.P. Filed on 6-3-1931. Order D/27-6-1931

Returned"" (for satisfying cer-

tain conditions).

The present application (the tenth) was, as already stated, filed on 15th January, 1934.

Under Clause (5) of Article 182 of the Limitation Act (Act IX of 1908) as amended by Act IX of 1927, the limitation runs, from the date of the

final order, passed on an application made in accordance with law, to the proper Court for execution, or, to take some step-in-aid of execution, of

the decree. The present Clause (5) was substituted by Act IX of 1927 for Clauses (5) and (6) of the Act of 1908. Under Clause (5) as it stood,

the statute ran from the date of applying for execution etc., but under the amended clause the terminus a quo is the date of the final order. Clause

(6) in the Act of 1908, which referred to cases where notice was issued to the judgment-debtor, has been altogether omitted. The question that is

to be decided is, what is the meaning of the expression ""Final order"" as it occurs in the amended clause?

We may state at the outset that of the nine petitions, excepting the first two the rest were returned, as shown above, for some defect or other to

be remedied, but none of them was re-presented to the Court. If the clause had not been amended, the date of any of these petitions might furnish

the starting point, as it seems to be settled law, that failure to re-present a petition does not affect the rule that the statute runs from the filing of the

petition Narayanaswami Naidu v. Gantayya (1915) M.W.N. 865 Kamakshi Ammal Vs. Pitchu Aiyar and Others, Gurrala Seshayya and Another

Vs. Yedida Venkatasubbiah, Gopisetti Narayanaswami v. Muthyala Venkataratnam (1915) 2 L.W. 1207 and Thirupathi Ayyangar v. Yegnammal

(1932) 38 L.W. 224. As the clause now stands, the question is, what is the final order in the case from which the time runs? For the decree-

holder, it is contended that the order on each petition returning it for amendment, amounts to a final order. If that contention is right, the present

petition would be in time, filed as it was on 15th January, 1934, that is, within three years from 27th June, 1931, the date of the order on the ninth

petition; similarly, petitions 4 to 9 would also be in time. The decree-holder has had to contend to sustain this position, that the expression ""the final

order"" means ''the last order in point of time''. We arc not prepared to agree with this contention. The word ""final"" occurs not only in Clause (5) but

also in Clauses (2) and (6). The meaning of the word ""final"" in Clause (2) has had to be considered in several cases. In Batuk Nath v. Munni Devi

(1914) 27 M.L.J. 1 : L.R. 41 IndAp 104 : ILR 36 All. 284 the question arose whether the dismissal for want of prosecution of the appeal to his

Majesty in Council, was a final decree or made in the appeal. The question was answered in the negative and the application for execution, having

been made more than three years after the decree of the High Court, was held barred by lapse of time. To the same effect is the decision in Abdul

Majid v. Jawahir Lal (1914) 27 M.L.J. 17 : ILR 36 All. 350 . There, Lord Moulton observed:

The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an

order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the

conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.

Applying this test, when an order is made returning a petition, it does not deal judicially with the matter of the petition and cannot therefore, be

regarded as final. See also Sachindra Nath Roy v. Maharaj Bahadur Singh ILR (1921) 49 Cal. 203 : L.R. 48 IndAp 335 .

In Khan Sahib Abdulla Asghar Ali v. Ganesh Das Vig (1932) 64 M.L.J. 421 : L.R. 60 IndAp 83 : ILR 60 Cal. 662 the appellate Court made

an order holding that the appeal had abated and refusing to set aside the abatement. The question arose whether that could be deemed a final

order within the meaning of Article 182 (2). Their Lordships observe, that as the order in question was judicially made and had the effect of finally

disposing of the appeal, it amounted to a final order which gave a starting point. Applying the test here Laid down, when an order is made returning

a petition, it contemplates a final order to be passed at a subsequent stage, when the defects are remedied and the petition is re-presented.

Again, when an appeal had been wrongly presented and an order was made returning it for presentation to the proper Court, it was held that

such an order was not a final order within the meaning of Article 182 (2) Muhammad Abdul Kadir Marakayar by guardian Muhammad Kasim

Marakayar and Others Vs. Samipandia Tevar and Others, .

In the course of their judgment in Khan Bahadur Moulvi Khalilur Rahaman Khan v. The Collector of Etah (1933) 66 M.L.J. 79 : L.R. 61 IndAp

62 : ILR 55 All. 993 the Judicial Committee, referring to the amendment in question seem to regard the result of an application as being

synonymous with the final order passed upon it. (P. 85). Surely when an order is made returning a petition, that does not represent ""the result of

the application"". The order returning a petition is a long way off from the ultimate result which alone can properly be described as a final order.

""Final"", when it occurs in a legal enactment, does not usually mean ""last in point of item"". Even a general dictionary like Webster''s explains

what ""final"" as a term used in law means. A decision or judgment is final when it ends the action or proceeding in the Court that makes it, feaving

nothing further to be determined or to be done by the Court except the administrative execution of the decision or the judgment as the case may be

(Webster''s Dictionary (1927) IX Edn. p. 816); In Kadiresan v. Maung San Ya AIR 1933 Rang. 87 it has been held that an order directing notice

on a petition for execution would not be final but an order made on a subsequent date closing the case would be final.

As already observed, the amendment in question altered the provision in two respects; first, in Clause (5) ""the date of the final decree or order

has been substituted for ""the date of applying"" and secondly, the old Clause (6) has been totally repealed. This has a bearing on the question of the

meaning of the word ""final"". There was, under the Act of 1877 conflict of authority on the question, whether the time ran when the Court ordered

the notice to issue or when the notice was actually issued from the Court. In the Act of 1908 the wording was slightly altered and Clause (6) was

enacted. In spite of the change, the phraseology of the new clause was not clear enough to remove the doubt that prevailed. (Rustomji''s law of

Limitation, (1927) IVth Edn. p. 1026). By reason of the amending Act of 1927, which has made the final order the starting point, the provision in

Clause (6) as it stood, which gave rise to the conflict of opinion, became unnecessary and has accordingly been removed, {see Mitra on Limitation

(1932) VIth Edn. Vol. 2, p. 1982). If ""final"" means ''last in point of time'', the object of the amendment will clearly be frustrated as ""the date of

issue of notice"" may happen to be the final order, in the sense, that it is the order last made. This is clearly brought out by Kadiresan v. Maung San

Ya AIR 1933 Rang. 87 already cited. There the question was whether ""the date of notice"" or the date of the order closing the case furnished the

starting point. In no sense can an order directing notice be regarded final; in the very nature of things it is interlocutory. When a Court directs notice

to issue, it has in contemplation the making of a final order in due course. The words ""final order"" imply that the proceeding has terminated so far as

the Court passing it is concerned.

This view entails no hardship whatsoever upon a diligent creditor. If the execution proceeding has ended, the final order gives the starting point;

if, on the other hand, execution has been suspended by no default of the decree-holder, he can, treating the petition as a pending one, apply to

have it revived, without being hindered by any rule of limitation. Shaikh Kamaruddin Ahmad v. Jawahir Lal (1905) 15 M.L.J. 258 : ILR 27 All.

334 : L.R. 32 IndAp 102 This case incidentally throws light on the question what constitutes a final order. When it was ordered that ""in default of

prosecution on the part of the decree-holder the record be not sent to the Collector''s Court"", the Judicial Committee proceeded upon the footing

that there was no final order.

Lastly, a word remains to be said as regards the so called policy of the Amending Act. It is urged that the object of the amendment was to

enlarge the limitation period in the interests of the decree-holder. Granting that this is a relevant matter, one cannot help noting that the amendment

was made in consequence of the recommendations of the Civil Justice Committee, which had, for their object, the speedy disposal of litigation.

Take the case in hand. It shows how frivolous applications could have, under the law as it stood, kept alive a decree. In the case of seven

successive petitions, the decree-holder, it is perfectly obvious, had not the slightest desire to prosecute them. Were it permissible to speculate, it

would not be far-fetched to hold, that the object of the amendment was to put an end to such frivolous petitions. In some cases undoubtedly the

amendment benefits the decree-holder; for instance, where a prior petition is kept pending for a long time for no default of his, he unjustly suffers, if

the time is to be reckoned from the date of the petition and not from the date of the final order. But, to say that the decree-holder gets some benefit

from the amendment is one thing, and it is a wholly different thing to say that the object of the amendment is to benefit him.

The decision of Pandrang Row, J., in C.M.S.A. 173 of 1932, on which the respondent strongly relies, completely supports him. But for the

reasons already stated, we must, with great respect, dissent from the view expressed there.

We must therefore, holding that the execution petition was barred by time, reverse the lower Court''s order and allow the appeal with costs, to

be paid by the official receiver out of the Insolvent''s estate.