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Kandasami Chettiar and anr. Vs. Gokuldas Madanji and Co. and Bombay Care of Mathridas Gokuldas (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1941Mad731; (1941)1MLJ837
AppellantKandasami Chettiar and anr.
RespondentGokuldas Madanji and Co. and Bombay Care of Mathridas Gokuldas (Deceased) and ors.
Cases ReferredRama Reddi v. Motilal Doga I.L.R.
Excerpt:
- - it treats the application as a re-presentation of the application of 1935 and holds on the authority of two madras rulings that the application is clearly barred by limitation. 326. the facts are not of course precisely similar, for the question there dealt with was an application asking for a decree to be transmitted to an entirely new court, but the principles upon which the learned judges have based their decision clearly apply to the present case......by an endorsement upon the petition:copy of the decree has not been received from the high court bombay--returned.2. in march, 1937 the original petition which had been presented in 1935 was again presented before the court. it was signed by a fresh vakil as the original vakil who had signed it in 1935 was then dead, and the new date 22nd march, 1937 was appended to his signature. but at the same time the vakil mentioned to the court that he was re-presenting the old application. this application was disposed of in october, 1937 by the order from which this appeal has been preferred. it treats the application as a re-presentation of the application of 1935 and holds on the authority of two madras rulings that the application is clearly barred by limitation. it goes on to say:the order.....
Judgment:

King, J.

1. The question which arises in this appeal is one of limitation. The appellants are the decree-holders who filed an application in 1932 upon which the final order was passed on 30th August, 1932. That order was to transmit the decree for execution to Bombay. In February, 1935 another application was made by the decree-holders, again with the request that the decree should be transferred to Bombay for execution. That application was disposed of on the 27th February, in the following language by an endorsement upon the petition:

Copy of the decree has not been received from the High Court Bombay--returned.

2. In March, 1937 the original petition which had been presented in 1935 was again presented before the Court. It was signed by a fresh vakil as the original vakil who had signed it in 1935 was then dead, and the new date 22nd March, 1937 was appended to his signature. But at the same time the vakil mentioned to the Court that he was re-presenting the old application. This application was disposed of in October, 1937 by the order from which this appeal has been preferred. It treats the application as a re-presentation of the application of 1935 and holds on the authority of two Madras rulings that the application is clearly barred by limitation. It goes on to say:

The order relied on by decree-holder as the final order to save limitation is not the final order and consequently this application is not in time.

3. Against this the decree-holders have appealed.

4. It is difficult to see the logic upon which the learned Subordinate Judge has based his decision. If in fact the application was one filed in 1935, it seems obvious that it was filed in time, and the only method of disposing of it adversely to the decree-holders would seem to be to refuse to condone the two years' delay in re-presentation. If on the other hand the application be treated as a new one presented for the first time in 1937, then the question whether the order of the 27th of February, 1935 is or is not a final one will alone arise. In appeal after some hesitation, the learned advocate for the appellants has decided to confine his case to the latter hypothesis, that in spite of the ambiguous language with which the application was presented in 1937, it was in reality a fresh application. He then argued that the order of the 27th February, 1935 was a final order. We are of the opinion that this argument must succeed. No doubt in most cases when an application of this kind is returned to the applicant, it is returned for the definite purpose of remedying some defect and of being re-presented within a brief interval of time. In the present case, the Court has not stated that it required any action to be done by the applicant. It has merely used the word 'returned' after explaining the reason why the application was returned. We think the only interpretation that can reasonably be given to this language is that the Court had decided that it would have nothing further to do with the application, and if that interpretation is correct, the order of the 27th of February, cannot be other than a final order within the meaning of any of the rulings of the Madras High Court which deal with the interpretation of that expression.

5. It is however argued for the respondent that the application of 1935 was an application which was not made to the proper Court, and therefore though the order of the 27th of February was a final order, it cannot be relied upon by the appellant to Save limitation. The reason suggested by the respondent in support of this argument is this : that in 1932 the Subordinate Judge of Ramnad had transmitted the decree to Bombay. In 1935 that decree was still in Bombay and had not been returned. Until it was returned from Bombay, the Ramnad Court had no jurisdiction to order it to be sent to Bombay and the Bombay Court alone had jurisdiction to deal with it. A very similar question has been dealt with by a Bench of this Court in Rama Reddi v. Motilal Doga I.L.R. (1938) Mad. 326. The facts are not of course precisely similar, for the question there dealt with was an application asking for a decree to be transmitted to an entirely new Court, but the principles upon which the learned Judges have based their decision clearly apply to the present case. They have analysed various provisions of the Civil Procedure Code and have held that when a Court transmits a decree to another Court for execution, it does not thereby divest itself of all its jurisdiction. It still retains that jurisdiction for some specific purposes which are set out by them. Article 182 defines the 'proper Court' as the Court whose duty it is to execute the decree or order, and if in spite of the transmission of the decree to another Court there still remains the duty in the transmitting Court to take certain measures in execution, it is obvious, it seems to us, that it is the proper Court within the meaning of this definition. As we are thus in agreement with the decision in Rama Reddi v. Motilal Doga I.L.R. (1938) Mad 326. We do not consider it necessary to examine the decisions of any other High Courts. The result is therefore that there is no formal defect in the application filed in February, 1935. It was an application made in accordance with law and made to the proper Court within the meaning of Article 182. As we have already said the order returning that application was a final order. The present application in 1937 was made within three years of that order and is therefore in time.

6. This appeal is accordingly allowed and the execution application directed to be restored to the file of the learned Subordinate Judge and disposed of according to law. The respondent will pay the appellant's costs throughout.


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