Alfred Henry Lionel Leach, C.J.
1. These two appeals arise out of an order passed in execution proceedings by the Subordinate Judge of Nellore. The question in A.A.O. No. 803 of 1943 is one of limitation. A.A.O. No. 196 of 1944 raises a question of res judicata, but it is admitted that if this Court decides the question of limitation in favour of the appellants in A.A.O. No. 803 of 1943, it will mean the dismissal of A.A.O. No. 196 of 1944.
2. In order to appreciate the question of limitation, it is necessary to set out the course of events between the 28th October 1929 and the 3rd March 1943, the date of the order under appeal. On the 28th October 1929 one Salvapantulu Subba Rao obtained a money decree in the Court of the Subordinate Judge of Nellore for Rs. 2,000 with interest against Robala Venkatareddi, Robala Subbarami Reddi and certain others. Venkatareddi was the first defendant and Subbarami Reddi the second defendant. On the 25th October, 1932 the decreeholder applied for execution against the second defendant and the legal representatives of the first defendant, who had died in the meantime. The legal representatives were made parties as respondents 3 to 5. On the 14th January, 1933 the decree was transferred to the District Court for execution. On the 4th May, 1933 the decree-holder filed an application in the District Court for execution by attachment and sale of the properties of the second defendant and the legal representatives of the first defendant. The application complied with all the requirements of Order 21, Rules 11 and 13 of the Code of Civil Procedure, but was returned to the decree-holder on two grounds. The first ground was that the petition was not accompanied by a vakalat. The second was that the Court required, under Rule 14 the petitioner to file extracts from the patta register. The pleader who presented the application was under no obligation to file a vakalat because he had filed one in the Subordinate Court in connection with a petition for the amendment of the decree. |This was brought to the notice of the Court and the pleader re-presented the petition which was then accepted, although it was not registered or numbered The District Judge insisted on the patta extracts being filed and on three occasions he granted further time for this purpose. The last date given was the 14th September 1933. As the patta extracts had not been filed on that date, the District Judge rejected the application for execution in an order couched in these terms,
Patta extracts not filed. Further time not applied for. Rejected.
3. The appeals turn on the question whether this order was a final order within the meaning of Article 182(5) of the Limitation Act.
4. On the 26th March 1936 the decreeholder filed a fresh application for execution, and on the 4th July 1936, on this application, the District Judge ordered the arrest of the second defendant. The decreeholder failed, however, to pay the necessary batta, and consequently, on the 25th July 1936, the application was dismissed. The decreeholder took no further steps until the 19th July 1939 when he filed a third application for execution. This was dismissed on the 8th December 1939, also for non-payment of batta. On the 20th February 1941, E.A, No, 40 of 1941 was filed by the legal representatives of the decreeholder, who was then dead. The application asked for the recognition of the legal representatives of the decreeholder and for the transfer of the decree to the Court of the Subordinate Judge for execution there. On the 8th March 1941 the District Judge passed an order as prayed in E.A. No. 40 of 1941 and on the 15th July 1941 the decreeholder's legal representatives filed in the Subordinate Court an application for execution. The judgnientdebtors took the objection that the application was out of time. Admittedly his objection would have been well founded if the order Of the 14th September 1933 were not a final order on an application made in accordance with law. The Subordinate Judge held that it was not a final order, and relying on the decision of this Court in Khadri Sahib v. Viswanatha Iyer : AIR1943Mad297 , dismissed the application for execution so far as it concerned the legal represent tatives of the first defendant. He held, however, that the application was not timebarred so far as the second defendant was concerned, because he had not appealed against the order of the 4th July, 1936, directing his arrest and the doctrine of res judicata applied. A.A.O. No. 803 of 1943 has been filed by the legal representatives of the decree-holder and A.O. No. 196 of 1944 by the second defendant.
5. In Govind Prasad v. Pazuankumar (1943) 2 M.L.J. 121 : L.R. 70 LA. 83 I.L.R. (1943) Nag. 669 the Privy Council said that where an application for execution complied with the provisions of Rules 11 to 13 of Order 21, but an order passed under Rule 14 was not complied with, the application was nevertheless one in accordance with law within the meaning of Article 182(5) of the Limitation Act. Rule 14 was merely permissive, unlike Rules 11, 12 and 13 which were mandatory. It was pointed out that the Court in that case might well,have abstained from requiring the applicant to produce the certified extracts and have proceeded with the execution of the decree, seeing that the property had been under attachment and the necessary particulars about it were already known. In the present case the property was not under attachment, but all the particulars required by rule'13 were given either in the petition or in a schedule annexed thereto. In Govind Prasad v. Pawankumar (1943) 2 M.L.J. 121 : L.R. 70 LA. 83 :I.L.R. (1943) Nag. 669 , the application for execution was dismissed for default in compliance with the direction given under Rule 14. Their Lordships held that, as the application was in accordance with law,. when it was presented, containing all that was required by Rules 11 and 13, the order dismissing it for default in compliance with the direction of Court under Rule 14 was a final order within the meaning of Article 182(5) and there-fore started a fresh period of limitation. That is the position here.
6. The learned advocate for the respondents in A.A.O. No. 803 of 1943, who also appears for the appellant in A.A.O. No. 196 of 1944, has endeavoured to draw a distinction between Govind Prasad v. Pawankumar (1943) 2 M.L.J. 121 : L.R. 70 IndAp 83 : I.L.R. (1943) Nag. 669 and this case on the ground that in the former case the application was registered and a number given to it, whereas in this case it was not registered and consequently received no number. In this connection he relies' on an observation of Varadachariar, J. in Sattappa Chettiar v. Chokkalinga Chettiar (1940) M.W.N. 69. We shall refer to that case in a moment, but in passing we may say that we consider that it does not render support for the contention that the non-numbering of the application which was dismissed on the 14th September 1933 is fatal. The questions here are whether that application was in accordance with law on the date of the presentation,- whether it was judicially considered and whether a final order was passed thereon. The non-numbering of the application is, in our opinion, of no consequence, and there are six decisions of this Court to the same effect, namely, Marl tnuthu Pillai v. Abdul Ghani Rowther : (1943)2MLJ521 , Mahalakshmiammal v. Subramania Chettiar : AIR1944Mad43 , Parankusa Naidu v. Ayyanna Naidu (1943) 1 M.L.J. 445, Ramachandra Naidu v. Muthu Chettiar : AIR1943Mad340 , Ponnusami Voikaran v. Gopalaswami Aiyar A.A.A.O. No. 73 of 1943 and Muthukrishna Aiyar v. Sivarama Iyer A.A.O. No. 437 of 1943. The last two cases have not been reported, but we have perused the judgment in Muthukrishna Aiyar v. Sivarama Iyer A.A.O. No. 437 of 1943, which was decided by Mockett and Bell, JJ. In delivering the judgment there Mockett, J. in dealing with the question of the non-numbering of the petition, said that it seemed to him that the proper test was not whether some clerk remembered to write a number on a petition, but whether in fact the petition was before the Judge, was judicially considered and judicially decided. If these conditions were satisfied, the absence of a number was of no importance whatever. We are entirely in agreement with these observations.
7. In Sattappa Chettiar v. Chockalinga Chettiar2 the facts were altogether different from the facts in the present case and the difference has been discussed in Marimuthu Pillai v. Abdul Ghani Rowther 3. Sattappa Chettiar v. Chockalinga Chettiar2 was a case of rejection of an application for non-compliance with an order passed under Rule 17 of Order 21. The application was not in order and as the petitioner did not amend it as required by the Court it was rejected. The question was whether that amounted to a dismissal under Rule 57 or only a rejection under Rule 17. Rule 17 is merely concerned with the contents of an application. In the present case there was no question of any defect in the application. The application was in order from the very beginning. In the course of his judgment Varadachariar, J., referred to the fact that Sub-rule (4) of Rule 17 requires the Court, when the application is admitted, to enter in the proper register a note of the application and the date on which it was made; and it is this pas sage of the judgment on which the respondents so much rely. As we have indicated, we do not read the remarks of Varadachariar, J., as meaning that when an application has not been numbered, it must be deemed not to be in accordance with law and not before the Court. If his remarks were to be so construed, we should have to express our respectful dissent, but we see no reason for any such construction.
8. The learned Subordinate Judge has entirely misread the judgment in Khadir Sahib v. Viswanaiha Iyer : AIR1943Mad297 . He regarded that case as being authority for the proposition that the application which was dismissed on the 14th September 1933 was one which could not be deemed to be in existence. In Khadir Sahib v. Viswanatha Iyer : AIR1943Mad297 an execution petition was filed on the 2nd October, 1933, but was not numbered, and three days later it was returned to the decree holder for the purpose of filing encumbrance certificates. The decree-holder did not comply with this order and did not re-present the petition within the time allowed. On the 28th September 1936 he filed another application for execution and attached thereto the unnumbered petition which had been returned to him on the 5th October, 1933. The judgment-debtors objected to this new application being granted on the ground that the law of limitation had operated to bar it. Thereupon the decree-holder asked the Court to excuse the delay in re-presenting the petition of the 2nd October 1933 and this the Court refused to do. On these facts Krishnaswami Ayyangar and Kunhi Raman, JJ., held that the petition of the 2nd October 1933 had no legal existence and therefore any order passed in connection with it could not be regarded as a final order on an application in accordance with law. With respect we agree with all that was said in that case, but it has no bearing here.
9. In the present case there was a petition before the Court, it was in accordance with law and on it a final order dismissing it was endorsed. Consequently A.A.O. No. 803 of 1943 must be allowed with costs and A.A.O. No. 196 of 1944 dismissed with costs.
10.The case will be remanded to the lower Court with directions to proceed with the hearing of the petition for execution which the decree-holder's legal representatives filed on the 15th July 1941 and to decide it in accordance with law.