Sabapathy Mudaliar vs Mahalinga Padayachi

Govinda Menon, J.—In O. S. No. 2 of 1932 on the file of the Court of the Subordinate Judge of Cuddalore a decree was passed on 19-

12-1932 for a sum of Rs. 6328-6-6 with interest and costs. There was an appeal against that decree to this Court which was dismissed on 31-l-

1938. Subsequently an application for scaling down the decree under the provisions of Madras Act IV [4] of 1938 ended in the decree being

scaled down in favour of the judgment-debtor. Even prior to the scaling down of the decree, there was various petitions for execution, but still a

portion of the decree amount remained unrealised.

The execution petition out of which the present appeal arises viz., E. P. No. 35 of 1946 was tiled on 17-12 1945 and would be in time

according to Article 182 (5), Limitation Act, if, on an application filed on 10-2-1941, a ""final order"" had been passed. The lower Court has found

that there was no step in-aid of the execution as a result of the petition filed on 10-12-1941. It is necessary to set out briefly the various

vicissitudes which that application underwent.

Mr. A. Sundararaja Aiyangar, pleader for the plaintiff in O. S. No. 3 of 1932 acted in this execution petition also. Without being numbered, the

petition was returned on 17-12-1941 for complying with five requirements endorsed on that application, of which the last two were that the

amount of Rs. 700 realised in execution previously had not been appropriated and deducted on the due dates and also that the copy of the decree

as scaled down had not been filed. On 25-2-1941, the same was re-presented with the following endorsement:

Pray for two weeks time to comply with the order of return and production of copy of amended decree. Re-presented.

This prayer was granted on 27-2-1941. On 18-3-1941, the petition was re-presented after complying with one of the requisitions but with a

statement that an application had been made for a copy of the amended decree which had not been obtained and therefore the petitioner would be

filing the same as soon as it was received. Again the Court returned the application, stating that return NOS. 4 and 6 bad not been complied with

on 18-3-1941. Time for re-presentation was fixed as five days from that date The stipulated time expired on 23-3-1941 which happened to be a

Sunday and therefore the re-pre- sentation took place on 24-3-1941 which re-presentation would be proper compliance as regards the time fixed.

This re-presentation was not made by Mr. Sundararaja Aiyangar but by Mr. P.S. Gopala Aiyar and is as follows:

I pray for a week''s further time to comply with the return.

(Sd) P.S. Gopala Iyer, Pleader for

Mr. A, Sundararaja Aiyangar,

Pleader, 24.3.1941.

On 27-3 1941, the petition was rejected with the following order of Court:

Re-presentation and prayer for extension are unauthorised. Returns not complied with. Rejected 27-3-1941.

If the order of the Court dated 27-3-1941 is a ""final order"" passed on an application made in accordance with law to the proper Court, then there

can be no doubt that the two subsequent applications made on 2-1-1943 and 18.12.1944, are both in time and therefore the present petition

dated 17.12.1945 is also in time.

The controversy hag centred round the point as to whether the rejection of the execution petition on 27-3 1941 on account of the fact that the

returns had not been complied with is a final order or not. The learned subordinate Judge has held that it was admitted before him by Mr.

Sundararaja Aiyangar, who himself argued the application out of which this appeal arises, that he did not authorise Mr. Gopala Iyer to represent

the execution petition on 24-3-1941 and therefore as the representation on 24-3-1941 was unauthorised, there was no valid representation of the

petition with the result that the execution petition acquired no legal existence and, therefore, no valid and final order could be passed on such an

application. Reference was made by the lower Court to a passage in the judgment of Agha Haidar J., in K. L. Gouba v. Indo Swiss Trading Co.

Ltd., A. I. R 1936 Lah. 500 : 17 Lah. 610 to the following effect :

''This rule of law is well understood and a clear distinction is recognised in forensic parlance between ''pleading'' and ''acting''. It has been held in

Amir Shah v. Abdul Aziz, A. I. R 1932 Lah. 373 : 13 Lah. 775 that a pleader who appears on behalf of another pleader engaged by a party, can

appear for the latter pleader only ''to plead'' on behalf of the party, but he baa no power ''to act'' on his behalf without a document in writing being

executed in his favour in the manner prescribed by Order 3, Rule 4, Civil P. C. This proposition of law is perfectly correct and I have no hesitation

in following it.

The learned Subordinate Judge also referred to certain observations of King J., in Modono Mahono Deo Vs. Kunja Behari Ananga Bhima Deo

and Others, to the effect that an execution application filed by a vakil who had no vakalat from the decree-holder is not one in accordance with law

within ''the meaning of Order 3, Rule 4, Civil P. C., and, therefore, is null and void and is also not a step-in- aid of execution which would save

limitation Reference was also made to a decision of a Bench of this Court consisting of Burn and Menon JJ., in Nundamani Anangabhima v.

Modono Mohono Deo A. I. R. 1937 Mad. 239 : I. L. R. (1987) Mad. 320 where the learned Judges expressed the opinion that where an

execution application is presented by a pleader without any documentary authority in his favour from the decree-holder, it is not a question of a

defect; in the pleader''s authority; nor is it a question of an irregularity, nor even of an illegality, in anything that he does but it is simply a question of

want of power or capacity on his part to act. Therefore, the pleader having no capacity or power to act, the application has no legal effect as not

having been made in accordance with law. The learned Judge also placed reliance upon Vemulapalli Satyanarayana and Others Vs. Vetrapu

Kajireddi and Others, where Leach C. J., and Rajamannar J. laid down that since the number of the suit is one of the particulars which the

mandatory Rule 11 of Order 21, Civil P. C., states the application shall contain, an execution petition which gives an incorrect number of the suit is

not one filed in accordance with law and the mistake in the number of the suit is fatal. The learned Subordinate Judge concluded that the aforesaid

authorities supported his view that the representation by Mr. Gopala Iyer on 24-3- 1941 was by an unauthorised person and, therefore, no valid

application presented in accordance with law was before the Court on which a final order could be passed and such being the case it should be

deemed as if the execution petition filed on 10-2-1941 did not exist so far as the Court was concerned and no final order was passed thereon.

It seems to us that the learned Judge is in error. The case in K.L. Gouba v. Indo Swiss Trading Co. Ltd., A. I. R. 1936 Lah. 600 : 17 Lah. 610

related to the presentation of an appeal by a pleader who had no authority but who acted on behalf of another to whom a proper power was

given. In those circumstances Agha Haider J., of the Lahore High Court held, the presentation was invalid and no appeal came into the custody of

the Court. There was no question of any representation there and it cannot be said that there is any similarity between the point that arose in that

case and the question that arises for consideration in the present case. Similarly, the case in Sekar Mudaliar and etc Vs. Shajathi Bi and Another,

which itself was an appeal from the decision in Modono Mahono Deo Vs. Kunja Behari Ananga Bhima Deo and Others, dealt with the case of

original presentation and not of representation. The decision of Leach C. J. and Rajamannar J., in Vemulapalli Satyanarayana and Others Vs.

Vetrapu Kajireddi and Others, also related to a case of initial presentation and refers to the non-compliance with a mandatory provision of Order

21, Rule 11, Civil P.C., which non-compliance could not be rectified or condoned by any subsequent act. In none of these cases was the question

raised, whether an application which was presented by a pleader with proper authority and was returned for compliance with certain requisites but

was represented by some other pleader on his behalf---let us take it that this pleader was not authorised by the pleader on record--even though

the application has come to the custody of the Court though not in regular way, can be deemed to be non-existent and treated as such. A

somewhat similar point came for decision before King J., in C.R. Parankusa Naidu Vs. Ayyanna Naidu and Another, where the facts were as

follows. An execution petition was filed in Court on 21-6-1937. The Court made an endorsement thereon ""Vakil has no power. Returned. Time

seven days."" Though there was an order of return, the petition was not taken possession of by the party or the pleader from Court and remained in

the Court office. Subsequently, on 23-12-1937, the Court made an order rejecting the application. In the circumstances, King J., held that the

order dated 23-12-1937 was a final order as contemplated by Article 182 (5), Limitation Act, and a subsequent application within three years of

such order was within time. The learned Judge expressed the opinion that an order rejecting an application of this kind because the applicant would

not comply with certain requisitions was a final order which put an end to the application in respect of which it is made so far as the Court passing

it is concerned. He referred to Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and

Others, . Reference is also made to The Official Receiver of Ramnad Vs. Sivasuriya Narayanaswami Thevar and Others, . In both these cases,

there were expressions of opinion that an application which had been returned to the party who did not re-present it for more than three years

cannot be said to be an application made in accordance with law so as to invoke the provisions of the final order phrase in Article 182 (5),

Limitation Act. King J., was inclined to think that when the initial presentation of the execution petition was by a vakil who had no power, still,

when the Court rejected that application later on, without its having been taken back by the party or the pleader, it should be deemed that there

has been a valid petition presented in accordance with law on which a final order has been made. We do not think that we should go to that extent

because in Nandamani Anangabhima v. Madana Mohono Deo A. I. R.1937 Mad. 239 : I. L. R. (1937) Mad. 320 which confirmed the decieion

in Modonomohono v. Kunj Behari. A. I. R. 1936 Mad. 786 : 158 J. C. 891 this Court had held that if the original presentation was without

authority it should be deemed that there was no valid presentation at all. To a certain extent the view expressed by King J. in C.R. Parankusa

Naidu Vs. Ayyanna Naidu and Another, , runs counter to his view in Modono Mahono Deo Vs. Kunja Behari Ananga Bhima Deo and Others, .

But whatever that might be, in our opinion the present appellant cannot be placed in a worse situation than the appellant in C.R. Parankusa Naidu

Vs. Ayyanna Naidu and Another, where an unauthorisedly presented application was allowed to remain in Court with the result that the Court

passed an order rejecting it and it was held that it was a final order. If, instead of the execution petition in the present case being taken back on 18-

3-1941 by Mr. Sundararaja Aiyangar it was allowed to remain in Court with the requirements not complied with and finally on 27-3-1941 an

order rejecting the application was passed, then according to the ruling above referred to, it has to be held that there was a final order passed on

an application made in accordance with law. The intervening stages in a properly presented application during which it was returned and re-

presented by an unauthorised person would not make the original presentation invalid or illegal. It cannot for a moment be doubted that on 10-2-

1941 the application filed by Mr. Sundararaja Aiyangar was one made in accordance with law, to a proper Court for executing the decree. The

fact that it was re-presented to the Court by a pleader without authority cannot detract from the validity of the original presentation and since, on a

properly presented petition, there was an order passed by the Court stating that returns had not been complied with, it has to be held that there

was a final order on that application in accordance with law. The above decision of King J., was cited with approval by Wadsworth J., in Nataraja

Pillai Vs. U. Narayanaswami Iyer, , whose opinion was that where an execution petition is ordered to be returned for supplying certain information

within the time given, and the decree-holder does not in fact take the return of the petition from the Court and the Court thereupon rejects the

petition on a subsequent date, the order of rejection would be a final order on a subsisting petition for the purpose of saving limitation. It was also

held that though the decree-holder might have neglected to comply with the Court''s requirements in regard to execution petitions, their ultimate

rejection by the Court for such non-compliance will be final orders sufficient to save limitation for succeeding petitions. A discussion to the effect

that an execution petition which was properly presented but was unnumbered and was rejected by an order of Court should be deemed to be one

on which a final order disposing of it was made, was made by Gentle C. J. and Thyagarajan J. in Seetharama Chettiar v. Muthukrishna Chettiar,

60 M. L. W. 816 : AIR 1949 Mad 43. In all these cases, it was impliedly understood that if there had been an initial proper presentation of an

execution petition, any intermediate order or subsequent irregularities such as not taking back the return or not numbering it would not take away

from the effect of the initial valid presentation so as to detract from the final nature of the order which ultimately rejected the petition. But, the

learned counsel for the respondent relied upon a decision of Krishnaswami Aiyangar and Kunhi Raman JJ. in Syed Ghulam Khadir Sahib and

Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, where the learned Judges expressed the view that when

an execution petition is returned for the purpose of the petitioner doing something to enable the Court to proceed further with it, the Court really

defers its consideration until it is brought back with the defects remedied. It is only then that the Court is placed in a position to consider it judicially

and make what can be regarded as a ""final order"" on it. Therefore, an execution petition returned for amendment but not represented has no legal

existence till it is represented and if it is represented after the time limited, it does not acquire the status of a petition calling for an order unless the

delay is excused. Where the application for excusing the delay is rejected by the Court, the consequence is that there is no valid petition before the

Court to be ordered or rejected. In the opinion of the learned Judges if the execution petition originally validly presented was returned for

complying with certain requirements and a time was given for such compliance but it was re-presented after the expiry of the time, an order

rejecting the petition cannot be said to be a ""final order"" within the meaning of Article 182 (5), Limitation Act. In Bava C. Gopalaswami Mudaliar

Vs. The Executive Officer, Sri Thiagarajaswami Koil Devasthanam Tiruvarur and Another, Somiyya J. agreed with the contention raised that

Ghulam Khadir Sahib v. Viswanatha, Aiyar, 1942- 2 M.U.J. 768: AIR 1943 Mad 297 required reconsideration. He also agreed with the view

taken by King J. in Ramachandra Naidu Vs. Muthu Chettiar and Others, . To the same effect is the view taken by Yahya Ali J. in Mudigonda

Veerabhadraiah Vs. Lavu Seshiah, . We may also remark that in Muthuvenkatasubba Reddiar and Another Vs. Thangavel Chetti and Others, the

learned Judges were not inclined to accept the correctness of Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next

friend, Parvathi Ammal and Others, . We are therefore of opinion that the circumstances that the petition which was returned again came back to

Court through the agency of an unauthorised person would not invalidate its original valid presentation and therefore the order rejecting the same

for non-compliance with certain requirements would be a ""final order"" so as to save the period of limitation. In this view, the learned Subordinate

Judge''s decision holding that the present execution petition is barred cannot be supported. The appeal is therefore allowed and E.P. No. 35 of

1946 is remanded to the executing Court for disposal according to law. The appellant will be entitled to his coats in this appeal.