Subramania Chettiar and Others vs Narayanan and Others

Krishnaswami Nayudu, J.—The question for determination in this appeal is whether the execution petition is in time. The first execution

petition was presented on 18-4-1948 within three years of the passing of the decree. The second one was presented on 7-3-1946 and was signed

and verified not by the decree-holder but by one Natesa Pillai describing himself as the power of attorney agent of the decree-holder.

It was returned on 11-3-1946 calling upon the petitioner to produce the power of attorney, copy of the final decree, the encumbrance certificate

and the sale papers, and two months'' time was fixed for complying with the requisitions. 10 months thereafter, the petition was represented on 12-

1-1947 beyond the time granted for compliance. Along with the petition, an application for excusing the delay was also presented. The power of

attorney required was not produced and an endorsement was made on the execution petition that the power having been cancelled and the petition

having been presented by an agent without such a power of attorney the execution petition might be dismissed.

On the application for excusing the delay the Court passed an order dismissing it on 20-1-1947. The execution petition itself was taken up on 27-

1-1947, and was dismissed. The order of dismissal was in the following terms:

As per order in E.A. No. 108 of 1947 dated 20th January 1947 delay execution petition having been dismissed, this E. P. is dismissed,

The third execution petition out of which the present appeal arises was presented on 7-9-1947. The question is as to whether it could be held that

the order dated 27-1-1947 was a final order passed on an application made in accordance with law to the proper Court for execution in which

case the third execution petition would be in time. The trial Court held that it was such an order, while in appeal the learned Subordinate Judge of

Pudukottai, took a different view and dismissed the petition as out of time. Respondent in the present appeal is not represented.

It was urged in the lower appellate Court that the second execution petition having been signed and verified by a person who had no valid

authority, was not a valid petition at all and in any event, the petition to excuse the delay having been dismissed on 20-1-1947 the order rejecting

the execution petition itself on 27-1-1947 cannot be taken to be a final order within the meaning of Article 182 (5) of the Limitation Act.

As regards the first of the contentious, the lower appellate Court found that since under Order 21, Rule 11, Civil P.C. the execution petition need

not be signed and verified by the decree-holder himself, but might be signed and verified either by the applicant or by some one proved to the

satisfaction of the Court to be acquainted with, the facts of the case, and since Natesa Pillai who was an ex-agent, stated in the petition that he was

acquainted with the facts of the case, that would be sufficient compliance with Order 21, Rule 11, C.P.C.

The presentation of the execution petition was by the vakil who was found to have had authority. The lower appellate court rightly found that the

second execution petition was validly presented into Court. But on the second contention as to whether the order of 27-1-1947 would amount to

a final order, within the meaning of Article 182 (5) of the Limitation Act, the teamed Judge placed reliance on two Bench decisions of this Court in

-- Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, and -- ''Kuppuswami

Nainar v. Rangaswaml Goundan AIR 1949 Mad 217 (B), and took the view that as the application for excusing the delay was dismissed and since

as a consequence the unnumbered second execution petition was dismissed on 27-1-1947, the order of dismissal would not amount to a final

order.

In Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, , the execution

petition was returned on the ground that the sale papers were not filed and the decree-holder was required to re-present it within three weeks after

remedying the defects. The requisition was not complied with and it was represented nearly three years after without an application to excuse the

delay. Subsequently, the decree-holder presented an application for excusing the delay in the representation of the unnumbered execution petition

and the delay was not excused.

It was held that the unnumbered petition was one in conformity with law, the requirements of Order 21, Rules 11 to 14, Civil P.C. having been

complied with, and the mere non-production of the sale papers and the encumbrance certificates could not be held to he an omission which

justified the order of return. It was further held that when a 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 detects remedied, that it is only then that Court is

placed in a position to consider it judicially and make what can be regarded as a final order on it, and that an execution petition returned for

amendment but not re-presented has no legal existence till it is re-presented, and if it is re-presented after the time limited, it does not acquire the

status of a petition calling for an order unless the delay is excused.

In that case, the application for excusing the delay was rejected, and the consequence was that there was no valid petition before the Court to be

ordered or rejected. It was urged there, as in the present case, that the petition was found to he in accordance with law and was wrongly returned

and therefore it could not be contended that the petition when presented or re-presented had no legal existence. With reference to this contention,

the learned Judges observed at page 300 as follows:

But surely an order of return, right or wrong, if made by a competent Court is not a mere nullity and cannot be ignored by the party affected. Nor

is it open to take back the petition and choose his own time for re-presenting it..... He must represent it within the time limited by the order, and if

he does not, he must move the Court for an extension of time, or for excusing the delay. If the Court excuses the delay, the re-presented petition

will date back to its original presentation.

If the Court however refuses to do so, the position must be the same as if it had never been represented, and consequently it never emerged into

legal existence.

The facts of the present case warrant the application of the principle laid down in that decision.

But reliance is placed on the judgment of Somayya J. in -- Bava C. Gopalaswami Mudaliar Vs. The Executive Officer, Sri Thiagarajaswami

Koil Devasthanam Tiruvarur and Another, . In that case the execution petition was returned for amendment and was re-presented with an

application for excusing the delay in re-presentation. The application for excusing the delay was dismissed. Still the learned Judge held that when

there was no defect in the previous execution petition and the same was returned for compliance with certain particulars and the petition was re-

presented without undue delay, the order of the executing Court refusing to excuse the delay and dismissing the petition was a final order within the

meaning of Article 182 of the Limitation Act, and saved limitation.

Somayya J. preferred to accept the view of King J. in -- Ramachandra Naidu Vs. Muthu Chettiar and Others, that, when there was no defect in

the previous execution petition and the same was returned and there was no undue delay in the re-presentation, the order of the executing Court

refusing to excuse the delay and dismissing the execution petition must be taken to he a ""final order.

In Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, , the delay in

representation was nearly three years and Somayya J. observed that he was in agreement with the view of King J. in Ramachandra Naidu Vs.

Muthu Chettiar and Others, that the decision in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend,

Parvathi Ammal and Others, does not apply to a case where there was no undue delay in the re-presentation of the prior execution petition.

I feel I am bound by the decision of the Bench in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend,

Parvathi Ammal and Others, and the present appeal has therefore to be dismissed. Somayya J. and King J. have taken a contrary view that they

were not inclined to follow the view taken by the Bench in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next

friend, Parvathi Ammal and Others, .

The view taken by Somayya J. and King J. appears to be quite reasonable as if in fact an execution petition, which is in conformity with law, is

presented and if the office returns the petition for amendment and it is eventually found that notwithstanding the return the requirements of Order

21, Rules 11 to 14 have been complied with, the mere fact that an application to excuse the delay is dismissed and the execution petition is also

dismissed would not have the effect of holding that the dismissal of the execution petition could not amount to a ""final order.

As there a conflict between the decision of the Bench in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next

friend, Parvathi Ammal and Others, and the view taken by the learned Judges in the two other cases, and as this question frequently arises, it is

desirable that there should be an authoritative decision on the matter. I am of the opinion that the question may be considered by a Bench,

preferably, a Full Bench.

Place the papers before the Honourable the Chief Justice for orders.

(Opinion Of The Full Bench)

Govinda Menon, J.

As the order of reference sets out the facts with sufficient elaborateness it becomes unnecessary for us to restate the same. On the finding that a

second execution petition filed in Court on 7-3-1946 was validly presented, what has to be considered is whether its dismissal at a later stage

without being numbered on account of the fact that certain requisitions directed to be complied with by the Court were not fulfilled would amount

to a ""final order"" or not.

It is undisputed that if the requirements had been complied with within the time allowed and thereafter for some reason or other the petition was

dismissed then that dismissal would amount to a final order within the meaning of the term in Article 182 (5) of the Limitation Act.

In the present case, the application that was properly presented was returned for curing certain defects, which were not done within the prescribed

time and the request for excusing delay in representing the application was rejected with the result that me application which was unnumbered was

dismissed on 27-1-1947.

Divergent views on the aspect as to whether such an order is a final one can be gathered from the line of cases either way and we have to choose

that which lays down the correct principle.

In Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, , Krishnaswami

Aiyangar and Kunhi Rahman JJ. came to the conclusion that when an execution petition is returned for the purpose of the petitioner doing

something to enable the Court to proceed further with it then the Court really defers its consideration until it is brought back with the defects

remedied and it is only then that the Court is placed in a position to consider it judicially and make an order which caw be regarded as a final order

on it.

It was further held that the question whether an order is a final order within the meaning of Article 182 (5), Limitation Act, is not to be judged by

reference to what the Court passing the order thought at the time nor by the language employed by it. It is for the Court before which the nature of

the order is questioned at a later stage to decide the matter. Therefore an execution petition which is returned for amendment but not re-presented

within the time specified and the delay in re-presentation subsequently was not excused is not a petition calling for a final order.

According to the learned Judges, therefore, even if the initial presentation was in accordance with law but some defect in the petition has to be

remedied, until that is done within the prescribed time the petition as such cannot be deemed to exist as a pending cause and subsequently if that is

rejected by the Court it would not be a final order. Some support to this point of view can he gathered from the earlier decisions.

In -- T.S.P.L.P. Chidambaram Chettiar Vs. Murugesam Pillai and Others, , it was held that an application which does not conform to the require

ments of Order 21, Rules 11 to 14, Civil P.C. and which for that reason has to be kept in abeyance to permit the defect to be remedied is not an

application made in accordance with the law and therefore even if the direction allowing time to remedy the defect is regarded as an order of the

Court it would not be an order passed on an application made in accordance with the law, and hence cannot be called a final order.

In -- The Official Receiver of Ramnad Vs. Sivasuriya Narayanaswami Thevar and Others, , the learned Judges held that the rejection of an

unnumbered petition cannot be deemed to be a final order as wrong compliance of the requirements to remedy the defect which prevented the

numbering of the petition was due to the act or default of the decree-holder and in the circumstances the unregistered petition cannot be deemed to

be pending or revived later on by a fresh application.

The principle which the learned Judges followed is that it is only where an execution petition after compliance with the necessary formalities is

numbered and thereafter it is disposed of by an order that the adjudication can be deemed to be a final order. A similar view was taken in AIR

1949 Mad 217 (B), where Satyanarayana Rao J. followed the Bench decision in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by

his mother and next friend, Parvathi Ammal and Others, and held that when an unnumbered petition was returned for compliance with certain

requisitions and the same was not returned within the time prescribed and later on an application to excuse delay in re-presentation was dismissed,

then in the eye of the law the unnumbered petition did not exist with the result that the order rejecting the petition or refusing to excuse delay would

not be called a final order.

The principle deductible from these decisions is that even if the initial re-presentation did conform to the requirements of the law but still until the

petition is numbered it could not be considered to be in existence though it might remain in the archives of the Court and on the rejection of such a

petition the Court is not deemed to have passed an order on an existing cause pending before it. The decision in Syed Ghulam Khadir Sahib and

Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, did not meet with approval at the hands of King J. in

Ramachandra Naidu Vs. Muthu Chettiar and Others, ; where the learned Judge held that an application, which was in accordance with the law and

which was returned for the production of sale papers and extension of time for which was refused by the Court and later on dismissed without

being admitted and numbered, was nonetheless an application pending in Court and that its dismissal amounted to a final order within the meaning

of Article 182 (5), Limitation Act.

The learned Judge was further of the opinion that it is not always essential that the application should be admitted and numbered before the order

passed on it can be called a final order. The learned Judge took a similar view as in -- C.R. Parankusa Naidu Vs. Ayyanna Naidu and Another, .

If there no procedural defect or non-compliance with the imperative provisions of Order 21, Rule 11, Civil P.C. in the presentation of an execution

petition but the

same is returned for compliance with certain particulars but that is not re-presented within the time allowed and the delay in re-presentation is not

excused, still any order passed on such an application would be a final order.

This is the purport of the judgment of Somayya J. in Bava C. Gopalaswami Mudaliar Vs. The Executive Officer, Sri Thiagarajaswami Koil

Devasthanam Tiruvarur and Another, . It is evident from this that the act of numbering the petition and adding it on to the pending causes is not an

essential one for the order passed on it to be termed a final order. A similar view was taken by the learned Judge in

-- Juluri Venkataratnam and Others Vs. Kollipara Ramakotayya and Another, . Wadsworth J. in -- Nataraja Pillai Vs. U. Narayanaswami Iyer,

was of the view that where an execution petition is ordered to be returned for supplying certain information within the time given but the decree-

holder does not in fact take return of the petition from the Court and the Court thereupon rejects the petition on a subsequent date the order of

rejection would amount to a final order on a subsisting petition for the purpose of saving limitation.

The learned Judge followed the decision of King J. in C.R. Parankusa Naidu Vs. Ayyanna Naidu and Another, and distinguished Syed Ghulam

Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, .

Gentle C.J. and Thyagarajan J. in --''Seetharama Chettiar v. Muthukrishna Chettiar AIR 1949 Mad 43 (J), considered a case where an

execution petition was rejected by a court without numbering it because the party did not take it back to comply with certain particulars within a

particular time when ordered by Court and the learned Judges were of the opinion that such a rejection was a final disposal of the petition and

therefore the order passed was a final order.

The decisions of King J. in C.R. Parankusa Naidu Vs. Ayyanna Naidu and Another, and of Wadsworth J. in Nataraja Pillai Vs. U.

Narayanaswami Iyer, were followed. It is clear from the reasoning of the learned Gentle C.J. that in order to make an order a final one the

numbering of the petition and adding it on to the file of pending cases are not essential necessities. The learned Chief Justice enunciated a similar

principle in -- Muthuvenkatasubba Reddiar and Another Vs. Thangavel Chetti and Others, sitting with Satyanarayana Rao J. distinguishing the case

in In Re: Pakkiriswami Pillai, .

Two of us, Govinda Menon and Basheer Ahmed Sayeed JJ. in -- Sabapathy Mudaliar Vs. Mahalinga Padayachi, considered most of the cases

noted above and we were of the opinion that if there is a valid presentation in the first instance an order rejecting such a petition for non-

compliance with certain requirements would be a final order. It was stated there in the course of discussion that 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 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.

In L.P.A. No. 7 of 1949 (M), Satyanarayana Rao and Raghava Rao JJ. followed the decision in Muthuvenkatasubba Reddiar and Another Vs.

Thangavel Chetti and Others, and distinguished the case in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next

friend, Parvathi Ammal and Others, . They also approved of the decisions in -- ''Veerabhadriah v. Seshiah'', AIR 1949 Mad 250 (N) and

Sabapathy Mudaliar Vs. Mahalinga Padayachi, . Lastly we may refer to the decision of one of us Basheer Ahmed Sayeed in -- Ramabadra

Reddiar Vs. Ramachandra Reddiar and Others, in which the previous case law either way came in for discussion.

It was decided there that where an unnumbered execution petition returned for filling up certain particulars was re-presented after a delay of

eighteen months without the requirements having been complied without an application for an express order excusing delay but there was an

endorsement that the decree-holder was not pressing the petition and that it might be rejected, and the Court passed an order ""not pressed,

rejected"" such an order would be a final order within the meaning of Article 182 (5) of the Limitation Act.

Reliance was mainly placed upon the decision in Muthuvenkatasubba Reddiar and Another Vs. Thangavel Chetti and Others, .

We have now stated the conflicting views which necessitated the placing of this civil miscellaneous second appeal before a Full Bench. After a

consideration of the various authorities it seems to us that the correct and more acceptable view is not to treat the numbering and admitting of the

execution petition as a necessary ''sine qua non'' for any order passed upon it to become final, if as a matter of fact the initial presentation complied

with the provisions of the Civil P.C.

The finality of the order does not depend upon the addition of the petition to the numbers of execution petitions pending before the Court but What

has to be considered is the essence of the disposal. If alter the order is passed it is not possible for the Court to do anything further with the paper

that is rejected, then the order would be a final one but if something more has to be done even after the passing of the order in which case the

Court will be enabled to take into consideration other matters arising out of the same petition, then it is difficult to say that it is a final order.

We are of the opinion, therefore, that the view taken in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend,

Parvathi Ammal and Others, that unless a petition is numbered, it has no legal existence in the eye of the law is not correct and we arc unable to

follow the same. The opinion of King J., Somayya J. and Wadsworth J. approved of in the later cases is the correct one.

In the result the order of the Subordinate Judge is set aside and that of the District Munsif restored with costs here and in the Court below. There

was no appearance of counsel on behalf of the respondent nut Mr. K. Hainan for the appellant has placed before us all the relevant decisions for

and against the contention and we arc grateful to him for the assistance rendered.