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Thiruvenkatasami Iyengar Vs. Pavadai Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1922)24BOMLR606
AppellantThiruvenkatasami Iyengar
RespondentPavadai Pillai
Excerpt:
civil procedure code (act v of 1908), sections 36, 37-'pleader duly appointed'-appointment by agent-execution proceedings by the pleader.;a pleader appointed by an agent who holds a special power of attorney from a party to a suit to 'execute vakalat to vakils to sign execution petitions,' is 'a pleader duly appointed to act' on the party's behalf within the meaning of section 36 of the civil procedure code; and an application for execution signed by the pleader and by the agent is validly presented. - - 8. their lordships are therefore of opinion that the judgment appealed from, as well as that of the subordinate judge which it affirmed, was erroneous, and should be reversed, and a declaration made that the appellants' decree should be put into execution......the execution petition no. 279 of 1905 was not signed by any of the appellants. it was signed by a pleader appointed in writing to make the application embodied in the petition, and that writing was filed in the court.5. both the high court at madras and the subordinate judge of kumbakonam held that this petition was not validly presented, because, to use the words of the judgment of the high court, 'the person who executed the vakalat to the pleader to act on his behalf was not a 'recognised agent' of the decree-holder as defined under section 37 of the civil procedure code, 1882, and could not have presented the application for execution himself under section 36 of the civil procedure code the pleader appointed can only do what might be done by the party on whose behalf he is.....
Judgment:

Atkinson, J.

1. This is an appeal against the judgment and decree of the High Court of Judicature at Madras, dated November 25, 1910, which affirmed the decree of the Sub-Cordinate Judge of Kumbakonam, dated September 30, 1907, and made on an execution petition No. 279 of 1905.

2. The appellants are the punchayetdars of a temple and as such hold a decree for mesne profits against the respondents or their predecessors in title. Their petition praying for the execution of this decree was dismissed by the Subordinate Judge, and his judgment was upheld by the High Court. From this latter decision the decree-holders have brought this appeal.

3. There were nine plaintiffs originally in the suit. All but three of them have died or resigned or been removed from the trusteeship.

4. The appellants, to use the words of Section 37 of the Code of Civil Procedure, 1882, are resident within the local limits of jurisdiction of the Court within which limits the application by petition was to be made, and the sale applied for carried out. The case of the appellants does not come within any one of the Sub-sections of Section 37. The execution petition No. 279 of 1905 was not signed by any of the appellants. It was signed by a pleader appointed in writing to make the application embodied in the petition, and that writing was filed in the Court.

5. Both the High Court at Madras and the Subordinate Judge of Kumbakonam held that this petition was not validly presented, because, to use the words of the judgment of the High Court, 'The person who executed the vakalat to the pleader to act on his behalf was not a 'recognised agent' of the decree-holder as defined under Section 37 of the Civil Procedure Code, 1882, and could not have presented the application for execution himself Under Section 36 of the Civil Procedure Code the pleader appointed can only do what might be done by the party on whose behalf he is appointed.' The only question for their Lordships' decision is whether the construction in this passage put upon Sections 36 and 37 of the Code of Civil Procedure is their true construction. Their Lordships do not think it is their true construction for this reason: that it confounds the intending litigant, the pleader's client, with the intermediary by whom, as the agent of that litigant, the pleader is appointed to act on the litigant's behalf. The pleader is not appointed, on behalf of the intermediary or agent, to act on the agent's behalf, but by the agent on behalf of his principal, the litigant, to act on the litigant's behalf. The litigant is at once the principal of the agent and the client of the pleader. The lines of Section 36 of the Code of Civil Procedure immediately preceding the proviso run thus: 'be made or done by the party in person or by his recognised agent or by a pleader duly appointed to act on his behalf. ' The possessive pronoun 'hie' all through this sentence refers to the 'party '-i. e., the litigant-not the intermediary or agent.

6. This construction gives a reasonable and natural meaning to the provisions of Section 36. The application is to be made or done by the party in person or by the recognized agent of the party in person, or by the duly appointed pleader of the party in person, while the other construction would leave entirely uncovered the case where the party himself in person without the intervention of any agent duly appoints his own pleader to act on his own behalf.

7. In the present case, the appellants on September 8, 1902 executed, not a general power of attorney, but a special power of attorney in favour of one Raghava Naicken, authorizing him on their behalf to, amongst other things, 'execute vakalat to vakils, to sign execution petitions, and put in affidavits and to conduct all necessary proceedings' in this suit. On the same day this same Raghava Naicken, the appellants' agent, authorized the pleader to appear in the Tanjore Court to present the execution petition verified by him, the agent, to examine witnesses, argue, etc. No doubt the words run: 'to appear on my behalf in the Tanjore Court'; and he describes himself as general agent of the appellants under a general power of attorney, but that was a misrecital. The power of attorney was not a general power of attorney, but a special one, and the words, 'on my behalf' are misleading. The execution petition was to be presented on behalf of the appellants; they were the only persons who had the right to put the decree into execution and have the property of the debtors attached and sold.

8. Their Lordships are therefore of opinion that the judgment appealed from, as well as that of the Subordinate Judge which it affirmed, was erroneous, and should be reversed, and a declaration made that the appellants' decree should be put into execution. They will humbly advise His Majesty accordingly.

9. The respondents will pay the costs of the appeal.


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