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Viryala Perraju Vs. Pilli Achanna - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1069 of 1960
Judge
Reported inAIR1964AP152
ActsLimitation Act, 1908 - Schedule - Article 182(5); Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 11 to 14, 17 and 21
AppellantViryala Perraju
RespondentPilli Achanna
Appellant AdvocateM. Jagannadharao, Adv. for ;M. Krishna Rao, Adv.
Respondent AdvocateN. Bapiraju, Adv.
DispositionPetition allowed
Excerpt:
.....execution petition can be filed within three years of order of rejection. - - 6. it is now well settled that the words 'in accordance with law' mean in accordance with law relating to the execution of the decrees. it would in my opinion be better to provide in the rule in regard to cases which do not fall under rules 11 to 14 and consequently under rule 17, that whenever an execution petition is returned stipulating certain time for the purpose of effecting amendments, every decree-holder, within the time fixed or within such time as is extended by the court does not represent the execution petition, the matter must be placed before the court for such final order as it deems fit. (1939) 2 mad lj 671 :(air 1939 mad 841). but this later case also dissents from air 1918 mad 401. these..........execution petition, before it was numbered was returned for certain clarifications: firstly, the decree-holder was asked to state how the standing crop could be attached under order xxi, rule 43, code of civil procedure, secondly he was asked to state as to why notice under rule 22 was not sought before attachment. seven days time was granted for these clarifications. the execution petition was re-presented on 8th november, 1956, after complying with the requirements. the petition, however, was again returned on 15th november, 1956, with a fresh objection that he should file an affidavit showing the estimate of the standing crop and a separate schedule for that item to be filed. seven days time was again granted. the decree-holder filed the affidavit on 22nd november, 1956. the.....
Judgment:
ORDER

Gopal Rao Ekbote, J.

1. This revision petition raised a short but important question of limitation. The facts necessary for the purpose of appreciating the contentions raised before me are that the decree-holder who is the petitioner before me obtained a small cause decree on 23-9-1954 against the judgment-debtor who is the respondent. He filed the execution petition on 27-10-1956. He prayed for the attachment of some moveables including the animals and standing crop on Survey No. 284/1 belonging to the judgment-debtor. This execution petition, before it was numbered was returned for certain clarifications: firstly, the decree-holder was asked to state how the standing crop could be attached under Order XXI, Rule 43, Code of Civil Procedure, secondly he was asked to state as to why notice under Rule 22 was not sought before attachment. Seven days time was granted for these clarifications. The execution petition was re-presented on 8th November, 1956, after complying with the requirements. The petition, however, was again returned on 15th November, 1956, with a fresh objection that he should file an affidavit showing the estimate of the standing crop and a separate schedule for that item to be filed. Seven days time was again granted. The decree-holder filed the affidavit on 22nd November, 1956. The petition, however, was returned again on 28th November, 1956 for firstly verification of the schedule, secondly for the amendment of prayer -- the decree-holder was asked to confine his prayer between the moveables and that of standing crops and thirdly he wag directed to supply fly sheet for wrapping purposes. For compliance with the above said requirements three days time was granted to the decree-holder.

He did not represent the execution petition for over two years. On 30-9-1959 he re-presented the application with necessary amendments and filed the second execution petition. He also subsequently filed an application to excuse the delay in representing the first execution petition. This course adopted by the decree-holder was objected to by the judgment-debtor. He contended that the execution petition is time-barred and there is no reason to excuse the delay. The learned District Munsif. Rajahmundry through his order dated 30th March, 1960 upheld the contentions raised by the judgment-debtor, refused to condone the delay and dismissed the execution petition as time-barred. On the second execution petition filed along with the represented first execution petition it was merely noted that 'order pronounced. E. A. dismissed. No costs'. It is against this order that the decree-holder has come to this Court challenging the correctness of the order of the learned District Munsif, Rajahmundry.

2. The principal contentions raised by Mr. Jagannatharao, the learned counsel for the petitioner are that the order of return dated 28th November, 1956, was an improper order of return, that therefore it must be treated as a final order and in the alternative he pleaded that in case it is found that the said order of return is not a final order then the order of dismissal after refusing to excuse the delay passed by the Court below on 3oth March, 1960, is the final order; thus the second execution petition could not be dismissed as time-barred. He also submitted that the lower Court has erred in refusing to condone the delay.

3. In order to appreciate these contentions in their proper perspective it is necessary to look into the relevant provisions of the Indian Limitation Act and the Code of Civil Procedure. It is Article 182 (5) of the Indian Limitation Act which is applicable to the facts of the case. For the execution of a decree or order of any Civil Court three years period is prescribed and according to Clause (5) of the said Article the subsequent execution petitions have to be filed 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 or order. It is thus obvious that Clause (5) of the said Article provides that where there is a previous application for execution or to take a step-in-aid of execution, time runs from the date of the final order on such application, In order that the clause may apply the following conditions are necessary:

(1) the application must be one for execution or to take a step-in-aid of execution;

(2) the application must be in accordance with law;

(3) the application must be made to the proper Court; and

(4) there must be a final order on the application.

4. There is no dispute as far as the first and the third requirements are concerned as it is conceded that the first application was one for execution and that the application was made to the proper Court. The only two other requirements which have to be carefully considered are whether the first application was in accordance with law and that there is a final order on the application which saves the limitation as far as the second application is concerned.

5. On a careful scrutiny of the various decisions of Madras and other High Courts, it is clear that in order that an application may be considered to be in accordance with law, two elements must exist. Firstly the application must be one requesting the Court to do something which, under the law, that Court is competent to do and secondly it is possible for the Court, on the particulars furnished by the decree-holder in his application to proceed to grant the reliefs claimed by the decree-holder. As I have said earlier in regard to the competency to grant the relief, there is no dispute between the parties. It is conceded that the reliefs claimed by the decree-holder in the first execution petition could have been granted by the executing Court either singly or cumulatively. It is with regard to the second element that I have to give a little considered thought. It is plain that in order that the Court may act upon an application for relief sufficient particulars are to be stated in the application to enable the Court to do so. Otherwise it cannot be said that the application is in accordance with law.

6. It is now well settled that the words 'in accordance with law' mean in accordance with law relating to the execution of the decrees. Order XXI, Rule 11 (2) specifics the particulars which a written application for execution should contain. Rule 12 relates to causes where an application is made for attachment of any moveable property belonging to the judgment-debtor but not in his possession. In that case the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same. Rule 13 declares that an application for attachment of the immoveable property should contain a description of the property sufficient to identify the same, boundaries etc., and a specification of the judgment-debtor's interest in such property. Rule 14 states that the Court may require the applicant to produce certified extracts from the registers in certain cases.

It is Rule 17 which is material for the present enquiry. Clause (1) of Rule 17 empowers the Court to reject the application if the defect is not remedied within the time fixed by it. Before that the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with or not. Clause (2) declares that where an application is amended under the provisions of Sub-rule (1), it shall be deemed to be an application in accordance with law and presented on the date when it was first presented. Clause (3) is not material. Clause (4) provides that when the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall order execution of the decree. The two provisos of Rule 17 are not material for my purpose.

7. From a reading of the above said provisions it becomes clear that it is not every omission to comply with the rules that will disable the Court from proceeding with the execution. Broadly it can be stated that where the omission consists of particulars which are required to be given but which do not prevent the Court from proceeding with the application, the application should be considered as in accordance with law; but in cases where the Court cannot so proceed with the application it is obvious that the application is not in accordance with law. It is manifest that the applicability of the above said test for seeing whether an application is or is not in accordance with law has to be determined with reference to the facts and circumstances of each case. As stated above Rule 17 authorises the Court to allow the decree-holder to amend the petition. Where the application was amended then the application will be deemed to be in accordance with law when it was first presented, irrespective of the fact that the defect when it was first presented was material or not. In other words where the Court can proceed with the application the defects are immaterial. No dispute arises when within the time granted decree-holder amends the petition as required by the Court. Rule 17 Clause (1) treats the application as in accordance with law from the date when it was first presented.

The difficulty arises only when the Court requires the decree-holder to amend the petition and the decree-holder either presents the amended petition after the time prescribed by the Court or does not represent the petition after the amendment. In my opinion, it does not necessarily follow from the fact that where an application is returned for amendment, but is not amended the application must necessarily be considered to be is accordance with law. Rule 17 is an enabling one which allows certain defective applications subsequently amended to be deemed application in accordance with law with effect from the date of their first presentation and that rule will apply obviously in cases where the defect sought to be remedied falls within any one of the provisions of Rules 11 to 14. The position which springs from these provisions is whether any application is in accordance with law depends upon the answer to another question whether the defect, for the amendment of which the application was returned was a material defect without the amendment of which further proceedings could not be taken or was it only a formal defect. In my opinion, in the latter case the application will be one in accordance with law while in the former case it is plain that the application will not be in accordance with law.

8. In the back-ground of this discussion I must now see under what rule the executing Court had returned the first execution petition on 28th November, 1956. As stated above the petition was returned for complying with the three specified requirements. It is conceded before me that as far as the verification of schedule and fly paper to be wrapped are concerned they did not fall under any of the rules 11 to 14. Regarding the second objection for which it was returned, I have no manner of doubt that that objection also does not fall under any one of the said rules. The Court asked the decree-holder to choose which prayer of his he wants to insist. He had prayed for the attachment of moveables including the animals and the standing crop. The Court wanted him to choose between the two. Mr. Bapi Raju, the learned advocate for the respondent could not show me any provision of law under which the Court can compel the decree-holder to confine himself to any one of his prayer.

On the other hand it is clear from Bethina Venkanna v. Chunnilal Moolchand, : AIR1961AP63 that a decree-holder is entitled under law to proceed simultaneously against different judgment-debtors in execution of his decree and no permission of the Court is required for such a course. Thus the decree-holder has a right to simultaneously proceed against two judgment-debtors or ask for more than one relief. It is clear that the execution petition was not returned for remedying any defect under Rules 11 to 14 and therefore, Rule 17 is not attracted. The return of the execution petition which was in accordance with law, therefore, was admittedly improper. If that is so, then the order of return is either a final order, or the execution petition, in spite of its return to the decree-holder would be considered to be pending and the re-presentation made by the decree-holder would set the machinery of the Court in motion as the matter is deemed to be pending. In the alternative, the final order of dismissal of the execution petition on the ground that it was not represented in time, in any case, is a final order which puts an end to the first execution petition.

9. The question naturally arises as to what is the meaning of the expression 'final order' for the purpose of Clause (5) of Article 182 of the Indian Limitation Act. The word 'order' has been defined in Section 2, Sub-section (14) of the Code of Civil Procedure as meaning the formal expression of any decision of a Civil Court which is not a decree. The Code of Civil Procedure and the Indian Limitation Act being enactments in pari materia the word 'order' in the Indian Limitation Act must be construed as having the same meaning as it has under the Code of Civil Procedure, unless, of course, there are sufficient reasons to the contrary. It is now fairly settled that the order need not be one passed on the merits nor need it be a judicial determination of the matter involved in the application. It is, however, essential that in order to give a fresh starting point of limitation under Clause (5) of Article 182 of the Indian Limitation Act, the order must be a final one. The word 'final' means 'pertaining to the end or conclusion', and refers to that which brings with it an end. In other words it is used in contradistinction to the word interlocutory.

In view of this it is generally held that a final order implies that the proceeding has been terminated so far as the Court passing it is concerned, though the order as stated above need not be a judicial determination of the rights of the party. It follows that the question whether an execution case is still pending or has been terminated by an order must depend upon the interpretation of the order and the inference to be drawn as to the Court's intention in passing that order. Where a petition was returned for amendment and on re-presentation it was rejected, there can be little doubt that such an order is a final order.

In regard to the question whether an order returning an application for amendment itself constitutes a final order within the meaning of Clause (5) of Article 182, there appears to be some conflict. While it is true that no hard and fast rules can be laid down, in view of which an order can be considered as final and as stated above it depends upon the circumstances of each case, nevertheless the order returning the execution petition either must be construed as a final order or an order requiring the decree-holder to do something for which the execution petition must be considered as pending. It cannot be that the execution petition in spite of return is not considered as pending and also that the order returning the execution petition is not final order. The execution petition cannot be confined to a vacuum. Either it is pending or disposed of. After carefully going through the various provisions, I find that there is no specific rule except Rule 17, Code of Civil Procedure, which requires the Courts to pass a final order when the decree-holder to whom the execution petition is returned to be represented within a specified time does not do so. What happens in each case is that when the execution petition is returned the decree-holder in some cases does not choose to re-present, if at all re-presented it after a considerable time.

What is required in such cases is that if it is represented beyond the time stipulated by the Court he has to assign sufficient reasons in order to get the delay excused. Now the Court in such cases can either refuse to excuse the delay or condone it. In the latter case, there is unanimity that as far as Rule 17 is concerned the execution petition will he in accordance with law and will be deemed to have been presented on the date of its first presentation. But controversy arises only when the decree-holder either does not represent it at all or in case he represents beyond the time prescribed and the delay is not condoned by the Court. The difficulty is not due to principles but arises in view of the peculiar circumstances of the cases so far decided. In case the execution petition returned is re-presented beyond the stipulated time -- this time may be a short one or a long one; that in my opinion should not make any difference. What is more material in all such cases is whether the decree-holder is in a position to assign sufficient reasons for condoning the delay. It matters very little whether the delay is of a day or is of few years. In either case, the decree-holder may have very legitimate grounds to get the condonation of such a delay and if the Court thinks that the reasons assigned are sufficient then the length of delay is obviously immaterial.

When the petition is thus rejected on the ground that the delay caused in representing cannot be condoned, nevertheless such an order is an order of rejection under Rule 17, if the ground of return was within the ambit of Rules 11 to 14 of Order XXI, the Code of Civil Procedure. That rejection of the execution petition, in my opinion, would be a final order. It would in my opinion be better to provide in the rule in regard to cases which do not fall under Rules 11 to 14 and consequently under Rule 17, that whenever an execution petition is returned stipulating certain time for the purpose of effecting amendments, every decree-holder, within the time fixed or within such time as is extended by the Court does not represent the execution petition, the matter must be placed before the Court for such final order as it deems fit. In the absence of any such rule what is happening is that the decree-holder to whom the petition is returned to effect certain amendments does not re-present at all or re-presents the petition after a considerable time.

Both these types of cases give rise to a question whether the order of return or the subsequent order in case the petition is represented, of refusing to condone the delay and rejecting the petition amounts to a final order or not. The differences of opinion, in this respect, now existing could to a great extent be obviated if a provision on lines similar to Rule 17 of Order XXI, Code of Civil Procedure is made for other cases which are not covered by Rule 17, As long as such a provision is not made, the correct approach in my judgment would be that in such cases the order of return may in certain eases constitute a final order while in others where the delay is not excused: and Ultimately the petition is rejected that order will constitute the final order. But in any case -either the order returning the execution petition itself must constitute a final order or the matter must be considered as pending awaiting final disposal of the Court. The cases, where every defect which falls within the purview of Rules 11 to 14 and in which an order under Rule 17 of rejection is made and where it is decided that in such cases it will be deemed that no petition in accordance with law was initially presented, will have to be distinguished from those cases where the order of return itself was an improper one or did not fall within the ambit of Rules 11 to 14 and consequently Rule 17 did not apply.

As there is no provision in the Code of Civil Procedure for such cases it inevitably follows that either the improper order of return itself would constitute a final order or the ultimate rejection in case it is re-presented would be considered as a final one. As stated above, the test which will have to be applied even in cases where Rules 11 to 14 do not apply would normally be as to whether the Court could proceed with the execution of the decree without having the amendments sought carried out by the decree-holder. If the Court can so proceed then the order of return itself would be an Improper one and would constitute a final order. But in cases where the decree sought to be executed cannot be so executed for want of certain materials which ought to be provided by the decree-holder, in such cases as the Court cannot proceed with the execution unless the amendment is effected it cannot be deemed that the order of return was improper and if the amendment is not effected then when the petition is re-presented and rejected that order will constitute the final order. In such cases, perhaps the question whether the application was in accordance with law may also arise.

10. Now applying these principles to the facts of the present case, I am of the clear view that the order passed on 28th November, 1956, is partially a final order and partially an order of return. As far as it decides that the decree-holder cannot simultaneously execute both the reliefs which he sought, it finally determines as far as that Court is concerned that the petition is rejected in regard to the simultaneous execution of two reliefs. When the decree-holder represented the petition in accordance with the order dated 28th November, 1956, and the Court refused to excuse the delay and dismissed the petition, that order dated 30th March, 1960, would undoubtedly constitute a final order. In either case the second execution petition which is filed on 3oth September, 1959 would be within three years and consequently not barred by limitation. When it is not disputed that the first execution petition was in accordance with law then the above said conclusion becomes irresistible.

11. It is useful to refer to the various decisions cited before me in regard to the questions raised. The first decision is that of Ramanadan y. Periatambi, ILR 6 Mad 250, where a Bench of the Madras High Court decided that an application for execution of a decree which does not comply in every particular with the requirements of Section 235 of the Code of Civil Procedure, and which, having been Returned to the judgment creditor for amendment, has not been proceeded with, may still suffice under Clause (4), of Article 179 of Schedule II of the Limitation Act, to keep the decree alive. This case is the leading case in regard to the question which falls for my consideration. This case has been subsequently followed in a number of cases and in other cases where this case was not specifically referred to the decisions were almost on similar lines. The following are the cases which follow the above said leading case:

Rama v. Varada, ILR 16 Mad 142, Vadivelu Pillai v. Maruda Pillai, AIR 1915 Mad 1042, Gurrala Seshayya v. Venkata Subbiah, AIR 1915 Mad 1204 (1), Mootha v. Sankunni Nair, AIR 1916 Mad 510, Narayanaswami Naidu Garu v. Krovidi Gantayya, AIR 1916 Mad 958 (1), Rajam Aiyer v. Anantaratnam Aiyar, AIR 1916 Mad 058 (2), Narayanaswami Naidu Garu v. Muthyala Venkataratnam, AIR 1916 Mad 1155 (3), Kamatchi Ammal v. Pichi Iyer, AIR 1917 Mad 836, Natesa Pillai v. Ganapatia Pillai, AIR 1918 Mad 1090, Mahomed Abu Bakkar Maracair y. Rama Krishna Chettiar, AIR 1933 Mad 540 (1), Thirupathi Ayyangar v. Yegnammal, AIR 1933 Mad 568, The Municipal Council, Tanjore v. Sundaresan, 1939 Mad WN 426 : (AIR 1939 Mad 429), Kandaswami Chettiar v. Gokuldas Madanji and Co., (1941) 1 Mad LJ 837 : (AIR 1941 Mad 731).

12. It will thus be seen that till about 1940 except Doorvas Seshadri Iyer v. Ananthayee, AIR 1918 Mad 401 where it was decided that a petition which is returned and not re-presented, the petition cannot be considered as pending and another case Shanmuga Pathar v. Swaminatha Pathar, 1936 Mad WN 547 (1) where it was decided that when a defective petition is returned, the decree-holder cannot prolong limitation by not presenting it, in all the cases, unanimous view was expressed that if a petition is returned, it would certainly save it from limitation. Even in 1936 Mad WN 547 (1), Stoddard, J., held that the return order itself is final. But this case was not approved in a subsequent case, Chidambaram Chettiar v. Murugesam Pillai. (1939) 2 Mad LJ 671 : (AIR 1939 Mad 841). But this later case also dissents from AIR 1918 Mad 401. These dissenting cases, therefore, cannot be considered as good law.

The difference of opinion seems to have arisen only subsequent to 1940. In Sathappa Chettiar v. Chockalingam Chettiar, AIR 1940 Mad 615, a Division Bench was concerned with a case which was rejected under Rule 17. It held dissenting with the decision of AIR 1933 Mad 540 (1), that in view of the facts of that case there was no petition in accordance with law before the Court. In another case Syed Ghulam Khadir Sahib v. Viswanathayyar, (1942) 2 Mad LJ 768 : (AIR 1943 Mad 297), it was decided that the order of return is not final order and when the petition seeking condonation of delay is rejected the result of the case is that there was no valid petition before the Court, To the same effect are the two other cases viz., Kuppuswami Nainar v. Rangaswami Goundan, AIR 1949 Mad 217 : (1948) 2 Mad LJ 374 and Lakshminarasimham v. Ven Vaktaji Gomaji and Co., AIR 1949 Mad 363, AIR 1949 Mad 217: (1948) 2 Mad LJ 374, however has been specifically overruled by a Full Bench of the Madras High Court in Subramania Chettiar v. Narayanan, : AIR1955Mad615 . The same Full Bench also overruled (1939) 2 Mad LJ 671 : (AIR 1939 Mad 841), Official Receiver, Ramnad v. Narayanaswami Thevar, (1941) 2 Mad LJ 1018 : (AIR 1942 Mad 216) and Abdul Shukoor v. Official Assignee of Madras, (1948) 2 Mad LJ 274 : (AIR 1949 Mad 289).

13. Thus even after 1940, the difference which had arisen as far as Madras High Court is concerned has been set at rest by the above said Full Bench decision. The other cases which followed the old trend are Seshagiri Rao v. Subbarami Reddy, (1945) 1 Mad LJ 270 : (AIR 1945 Mad 154) (FB), Seetharama Chettiar v. Muthukrishna Chettiar, AIR 1949 Mad 43 (Division Bench), Veerabhadriah v. Lavu Seshiah, AIR 1949 Mad 250, and Venkatarao v. Surya Rao Bahadur Gam, : AIR1950Mad2 . It cannot thus, now be said that the view which was expressed in ILR 6 Mad 250, is not valid. In my opinion that view still holds the field. It may be that : AIR1955Mad615 (FB), is not binding on this Court as it was delivered subsequent to the constitution of Andhra High Court. But the view which the Full Bench took cannot be considered as a view which was not previously held by the cases which are binding on this Court. Umamaheswaram, J., had to consider this question in Lakshmipathi Sastry v. Kota Chalamaiah, 1957 Andh LT 584. The learned Judge also preferred to follow the final view expressed in : AIR1955Mad615 (FB), after giving the reasons as to why it should be followed and I respectfully agree with the said decision. This view finds substantial support from Govind Prasad v. Pawankumar, AIR 1943 PC 98 and B. Shivashankar Das v. Mufti Syed Yusuf Hasan, AIR 1934 All 481 (FB).

14. On a careful examination of all the cases cited above and the relevant provisions of law, I clearly reach the conclusion that as far as the order dated 28th November, 1956, is concerned it is final to the extent it rejects one of the two reliefs. It is also final when the petition was dismissed after it was re-presented in 1959. Both these orders constitute the final order within the meaning of Article 182 (5) of the Indian Limitation Act. That being so, the second execution petition is not barred by statute of limitation. The lower Court, therefore, has erred in dismissing it as time-barred. I must make it clear that I agree with the Court below that the delay in re-presenting the first execution petition cannot be excused as the reasons assigned by the decree-holder are not sufficient. Nevertheless as I stated above, the dismissal of that petition constitutes a final order. In either case, the second execution petition is within time. I would, therefore allow this revision petition, set aside the order of the Court below and remit the second execution petition for carrying out the execution of the decree. The petitioner will get his costs.


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