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Natesa Pillai and ors. Vs. Ganapathia Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1917)32MLJ621
AppellantNatesa Pillai and ors.
RespondentGanapathia Pillai and ors.
Cases ReferredSrinivasa Aiyangar v. Tirumalai Chetty
Excerpt:
.....decisions not easy to reconcile) as to the effect of failure to verify the execution petition. the present application was filed on the 2nd january 1915. the district judge has held that the application of december 1912 was not in accordance with law and that the failure to re-present it prevented its operation as a step in aid of execution. 2. on the second question, it is well settled that under article 182 of the limitation act, it is the date of the presentation of the application that counts. i am satisfied on reading the application that this information was furnished. as at present advised, i am not prepared to hold that if an application is in other respects legal, the failure to comply with a demand to produce an encumbrance certificate would have the effect of making it 'an..........an enactment that from henceforward no petition dismissed of struck off for any default of the party presenting it should be treated as a step in aid for the purpose of saving limitation, would, as it seems to me, impose no real hardship on decree-holders and would make the law certain. in a matter of this kind, it is of supreme importance that a decree holder should be always in a position to know when the time for execution of his decree will expire.5. i would set aside the order of the district judge and direct him to restore the petition to file and dispose of it according to law.6. i would make no order as to costs.seshagiri aiyar, j.1. i am of the same opinion. the decree in this case was passed on the 22nd february 1910. an application for execution was presented on the 18th.....
Judgment:

Ayling, J.

1. The sole question for disposal in this appeal is whether the decree holder's execution petition filed on 18th December 1912 is an application for execution in accordance with law within the meaning of Article 182 of the Indian Limitation Act (Schedule I). It was ordered to be returned for amendment on account of certain defects; but was never taken back and in consequence never amended.

2. The two defects which the District Judge regards as serious, and on account of which he has held the application to be inoperative to save limitation are : (1) The omission to file an encumbrance certificate with the application. (2) The omission to specify the assessment on the land sought to be brought to sale. The leading case on the point is Ramanadan v. Periatambi I.L.R. (1883) M. 250 in which the learned Judges say : 'We are of opinion that the application of 1879, although not complying in every particular with the requirements of Section 235 of the Code of Civil Procedure (XIV of 1882), was substantially an application made in accordance with law, and that, although it was returned for amendment and nothing further was done upon it, the application gives a fresh starting point from the date of its presentation.' This principle has been followed in numerous subsequent cases in which the importance of various defects has been considered. It has usually been decided that, they were insufficient to justify the application being treated as one not in accordance with law.

3. It was apparently argued before the District Judge that no defect or omission was material as long as there was an application of some kind for the execution of the decree in the manner provided by law, This contention was rightly rejected by him and he very reasonably remarks that a line must be drawn between applications which, though defective, are to be considered as in accordance with law, and applications which are so defective as not to be treated as applications at all for this purpose. This no doubt is so; and it is by no means easy to say where the line s*hould fall. But I feel little hesitation in saying that the defects in the present case could not be considered G as disabling, without running counter to reported decisions of this Court. The application was no informal petition but one drawn up in the form prescribed by the rules. It is not contended that the failure to represent it after amendment makes any difference, apart from the nature of the defects. The failure to state the assessment on the land can hardly be treated as more serious than the failure to specify a previous execution application, which has been held to be a mere formal defect, so long as it did not prejudice the judgment-debtor or mislead the Court. Vide Rama v. Varada I.L.R. (1892) M. 142, which is a case on much the same lines as the present one. The obligation to file an encumbrance certificate is imposed by Rule 148 of the Civil Rules of Practice just as the obligation to file a copy of a decree is by Rule 164 and the observations of the Court in Pachiappa Achari v. Poojali Seenan I.L.R. (1905) M. 557, are as applicable to the one case as to the other.

4. But while I feel no doubt of the result of the present case, if the spirit underlying the previous decisions of this Court be applied, I am conscious that the law as therein enunciated is undesirably vague from a practical point of view. It appears to be generally conceded that an execution application may be so defective as not to be an application according to law at all; but what would constitute such dufects is a matter of doubt. There are apparently conflicting decisions of this Court (at any rate decisions not easy to reconcile) as to the effect of failure to verify the execution petition. Vide Raghunatha Thatha Chariar v. Venkatesa Tawker I.L.R. (1902) M. 101 : 12 M.L.J. 435 and Ramayyan v. Kadir Bacha Sahib I.L.R. (1907) M. 68 : 17 M.L.J. 596, If I may say so,, it seems worthy of consideration whether legislation should not be resorted to in order to make the position of parties clearer. An enactment that from henceforward no petition dismissed of struck off for any default of the party presenting it should be treated as a step in aid for the purpose of saving limitation, would, as it seems to me, impose no real hardship on decree-holders and would make the law certain. In a matter of this kind, it is of supreme importance that a decree holder should be always in a position to know when the time for execution of his decree will expire.

5. I would set aside the order of the District Judge and direct him to restore the petition to file and dispose of it according to law.

6. I would make no order as to costs.

Seshagiri Aiyar, J.

1. I am of the same opinion. The decree in this case was passed on the 22nd February 1910. An application for execution was presented on the 18th December 1912. It was returned to the decree-bolder with directions to furnish certain information. It was not re-presented. The present application was filed on the 2nd January 1915. The District Judge has held that the application of December 1912 was not in accordance with law and that the failure to re-present it prevented its operation as a step in aid of execution.

2. On the second question, it is well settled that under Article 182 of the Limitation Act, it is the date of the presentation of the application that counts. The facts that it was returned and that no orders were passed thereon do not allect the question.

3. The first question is more difficult. The course of authorities in this Presidency has been very indulgent to the decree-holders. It is open to doubt whether this partiality has not resulted in encouraging parties to present applications often carelessly and not infrequently with reckless disregard of the requirements of the law. The Limitation Act gives three years for filing the first application. This period is long enough to enable the most indifferent suitor to collect all the necessary information before applying for execution. Still, it is our painful experience, that petitions are lodged which are absolutely incapable of having a decision passed on them, in the hope it may serve to furnish a new starting point, In my opinion, a stricter provision of law might conduce to speedier remedy and to the avoidance of applications, which only in name, answer to what the law expects of the party. I would suggest that the legislature should enact a clause to the effect that a party failing to comply with the demand to furnish the necessary legal information should not have counted in his favour the defective application he had presented.

4. I shall now proceed to see whether the application of December 1912 was in accordance with law, as understood in this Presidency. I do not propose to examine the case-law of the other High Courts, as admittedly, there is no consistency in the pronouncements of the various High Courts on this question. Before considering the Case-law, the peculiar features of the application in question may be stated. The endorsement returning the application was in these terms : 'Pleader's fee claimed is excessive. It should be calculated on the amount to ba realised in execution. This application should be accompanied by encumbrance certificates. Draft sale proclamation i.e., (Vide Rule 66 of Order XXI, C.P.C). Item No. 93 not fully described. Returned, Time allowed 15 days'. The District Judge has held, and we agree with him, that the wrong calculation of the pleader's fee did not affect the legality of the application. As regards item No. 93, the learned Vakil for the respondents has conceded th-it the application was not defective in not giving the proper description of the property.

5. The production of an encumbrance certificate is not a requirement of the Code of Civil Proecdure. It only requires the party to state whether the property was subject to an encumbrance. I am satisfied on reading the application that this information was furnished. But the Rules of the High Court provide for the Court calling upon the decree-holder to produce an encumbrance certificate. As at present advised, I am not prepared to hold that if an application is in other respects legal, the failure to comply with a demand to produce an encumbrance certificate would have the effect of making it 'an application not in accordance with law'. There have been numerous cases in this Court in which failure to comply with the rules of practice has not been regarded as affecting the validity of the application.

6. The only other information that was not contained in the application related to the production of a draft sale proclamation. Order XXI, Rule 66, does not in terms say that a draft of that kind should be annexed to the application. Clause (e) empowers the Court to call for such information as would enable it to settle the proclamation of sale. In this particular instance, what the party failed to state wag the assessment due on the land sought to be sold. That is a material information. The Court, instead of requiting the party to give this specific information asked for a 'draft sals proclamation'. The rule to which the endorsement drew attention does not support such a requisition being made. At the same time, I am clear, that a party failing to assist the Court in this particular can have no grievance if the application is rejected as not being in accordance with law.

7. It is not necessary to examine the case-law at any length. In my opinion, any application which does not comply with the requirements of Order XXI, Rule 11(2) or with the provisions of the Code which imposes a statutory obligation on the applicant to furnish information would not be in accordance with law. Such an application may serve to start a new period of limitation only if the demands of the Court to supply the defects are complied with. Ramayyan v. Kadir Bacha Sahib I.L.R. (1907) M. 68 and Ramanandan v. Periatambi I.L.R. (1883) M. 250 are not against this proposition. In the first of these cases, it was held that as the decree was in the court, the failure to furnish a copy did not detract from the application. In the second case, an arithmetical error in the calculation of interest was held not to vitiate the application. It was held in a number of cases that if the court and the judgment debtor are not likely to be prejudiced by the want of the particulars, the application should be regarded as being one in accordance with law. Rama v. Varada I.L.R. (1892) M. 142, Raghunatha Thatha Chariar v. Venkatesa Tawker I.L.R. (1902) M. 101 and Kamatchi Ammal v. Pitchu Iyer : (1916)31MLJ561 . It is not easy, in a given instance to say definitely how far the opposite party or the court may or may not be prejudiced. I do not regard these decisions as laying down that a party is entitled as a matter of right to claim that a statutory disregard by him should not count against him. All that was said in these cases was, that the particulars called for were not of such a nature as would have prevented the court from acting on the petition. I am in entire accord with the proposition enunciated in Pachiappa Achari v. Poojali Seenan I.L.R. (1905) M. 557 that if an application is so defective that a court cannot pass orders thereon in execution, it should not baregarded as being one in accordance with law. See also Srinivasa Aiyangar v. Tirumalai Chetty (1914) M.W.N. 372.

8. In the present case, I am not satisfied that the party failed to supply any information which, the Code makes it incumbent upon him to furnish, i would, therefore, yet aaide the order of the District Judge and remand the application to him for disposal on the merits.


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