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Thathachariar Vs. Venkatesa Tawker and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1902)12MLJ435
AppellantThathachariar
RespondentVenkatesa Tawker and anr.
Cases Referred and Ramacharya v. Anantacharya I.L.R.
Excerpt:
- .....this appeal. the preliminary objection is over-ruled.3. as regards the merits, the twelve years' period of limitation expired when the court was closed. the appellant presented his petition for execution on the first day on which the court opened, and the court made an order under section 245 allowing it to be amended. the petition was amended within the time ordered and the appellant contends that this having been done he is not time-barred. the appellant applied for execution on an unverified petition without producing any evidence to show he held a power of attorney entitling him to apply and without producing his power of attorney. in the circumstances', we think the court ought to have rejected the application and rot to have made an order allowing it to be amended. such an order.....
Judgment:

1. A preliminary objection has been taken to the hearing of this appeal. The first ground on which the objection was based was that the decree-holder having died after the hearing of the appeal Before the lower appellate Court, but before the delivery of the judgment by that court, the appellant who is the son of the decree-holder, ought to have applied, to be brought on the record before the judgment of the lower appellate Court was delivered. So far as this ground of objection is concerned, we think the judgment should be read as from the date when the court reserved judgment. As regards this question the authorities appear to be uniform. See Chetan Charan Das v. Balbhadrw Das I.L.R. 21 A. 314 Surendro Keshub Roy v. Doorgasoondery Dosse I.L.R. 19 C. 513 and Ramacharya v. Anantacharya I.L.R. 21 B. 314 and we are of opinion that the appellant is not incompetent to prefer this appeal by reason of the fact that he had not been brought on the record before the judgment of the lower appellate Court was delivered.

2. The second ground on which the preliminary objection was based, was that the decree having been transferred from the decree-holder to the appellant by operation of law, the appellant under Section 232 of the Code of Civil Procedure ought to have applied for execution to the court which_ parsed the decree. It was no incumbent on the appellant to make such an application. He adopted the proper procedure in applying to this court to be brought on the record, and an order having been made by this court bringing him on the record, he is competent to present this appeal. The preliminary objection is over-ruled.

3. As regards the merits, the twelve years' period of limitation expired when the court was closed. The appellant presented his petition for execution on the first day on which the court opened, and the court made an order under Section 245 allowing it to be amended. The petition was amended within the time ordered and the appellant contends that this having been done he is not time-barred. The appellant applied for execution on an unverified petition without producing any evidence to show he held a power of attorney entitling him to apply and without producing his power of attorney. In the circumstances', we think the Court ought to have rejected the application and rot to have made an order allowing it to be amended. Such an order would have left it open to the appellant to make an effective application if he had not postponed taking action till the last day of the 12 years' period of limitation.

4. We think the petition presented to the Court on the last day before the period of limitation expired cannot be said to have been an application which has the effect of preventing the operation of the statute.

5. Section 245, no doubt, contemplates that an unverified petition may be returned for amendment, but it does not follow that a petition which is not verified is an application which will prevent the operation c the statute of limitation. On the facts of this case we are of opinion that there was no application for execution such as the law contemplates made before the expiration of the period of limitation.

6. The appeal is dismissed with costs.


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