1.The question raised in this civil miscellaneous second appeal is whether execution is barred. The relevant facts are these. The decree in questionwas passed on 8th November, 1982, by the Court of Small Causes, Madras. M.P. No. 685 of 1934 was filed for transmitting the decree to the District Munsifif's Court at Negapatam. It was ordered but as no steps were taken within the time limited, the decree was returned to the Court of Small Causes, Madras. Then E.P. No. 14677 was filed by the present appellant who is an assignee of the decree-holder's rights. His assignment was recognised and his request for attachment of the decree which the judgment-debtor had obtained in another suit, O.S. No. 136 of 1936 was granted. It is not known what became of that execution application. Attachment was ordered on the 8th January, 1937. On the 8th January, 1940, the appellant filed an execution application for transmitting the decree to the District MunsifFs Court of Tiruvarur for execution.' It was returned on the 25th January, 1940, with this endorsement, ' Clerk's certified affidavit in support of the application should be filed by 2nd February, 1940.' It was re-presented with this endorsement, ' Re-presented. Affidavit is filed. It is requested that the delay in re-presentation may be excused.' It was again returned on the 3rd April, 1940, by the Registrar of the Small Cause Court with this endorsement, ' Column 8 is incomplete. Comply by 13th April, 1940.' It was re-presented on the 26th August, 1940, with this endorsement by the advocates ' Complied with and re-presented. As the papers were misplaced and got mixed up and they were found only now, it is prayed that the delay in re-presentation may be excused.' This application was dismissed by the Court on the ground that the delay was too great and cannot be excused. I consider that this is an outrageous method of dealing with the decree-holder's rights. It has not been stated what the defect of column 8 was which required amendment. Column 8 so far as I have been able to see did not need any rectification. What is more, when the papers were returned on the 25th January, 1940, for the affidavit of the clerk, the Court of Small Causes did not point out any defect in column 8. It was the duty of the office to have examined the petition thoroughly and noted all the defects at one time. This only shows the slovenly way in which the office and the clerks concerned do their work. If this defect also had been pointed out when the first return was made, I dare say, the defect, if any, would have been remedied when the execution petition was re-presented on the 26th March, 1940, and there would not have been any room for dismissing the application. The Subordinate Judge in the order under appeal says that he sent for the original execution petition to see what the defect, was when the petition was at first filed which required to be rectified. The Subordinate Judge says that on an examination of the original he was not able to find out any defect which required to be rectified this Court has often laid down that it is the duty of the executing Courts to take execution petitions on file and to give them a number if there is no defect in the petitions. Their duty is to give the petition a number and to call for further papers if they are needed for the purpose of enabling the executing Court to order execution and to dismiss the execution petition if there is default in complying with the requisition. If that is done, time for the next execution petition would run from the date of dismissal. If the Court returns the execution petition which is in perfect order, asking for other information or for other papers and refuses to excuse the! delay when the execution petition is returned even one day late, the decree-holder is left without a remedy. Failure on the part of the Courts to perform their duty ought not to be visited upon the decree-holders. Under the Limitation Act as it stood before it was amended by the Act of 1929, an execution application would be in time if it was filed within three years from the date of the presentation of the last execution application in accordance with law. Now, in order to obviate certain difficulties which arose in the enforcement of that rule, particularly in cases where the previous application was pending for more than three years, and the hardship that ensued to the decree-holders if time was counted from the filing of the previous execution application and not from the date of the final order on it, the amendment was made in the year 1929 giving three years from the date of the final order on theprevious application. Now this is again turned against the decree-holders by the executing Courts not realising their duty properly and passing orders such as the one that we find in this case. If an execution petition is filed with no defect whatever and still the Court does not do its duty by taking it on file and giving it a number but returns it for filing further papers such as the sale papers or a certified copy of some other paper and refused to excuse a small delay when the papers are re-presented, we are told that there was no execution petition at all in existence and therefore no final order on such a previous execution application. This is a result which was never in the contemplation of the Legislature and the Courts ought to strive their utmost to avoid such a result. If, for instance, there was a small delay of a day or two in there-presentation of the previous application and some Court most unreasonably refused to excuse the small delay and rejects the application, is it to be said that there was no previous execution application and therefore no final order and therefore the next application is out of time? I refuse to subscribe to such a proposition. I am in perfect agreement with the decision of King, J., in Ramachandra Maidu v. Muthu Chettiar : AIR1943Mad340 , that, when there was no defect in the previous execution petition and the same was returned and there was no undue delay in the re-presentation, the order of the executing Court refusing to excuse the delay and dismissing the execution petition must be taken to be a ' final order ' within Article 182. The decision in Khadir Sahib v. Viswanatha Aiyar : AIR1943Mad297 is strongly relied upon by the respondent. But in that case the previous execution petition was not re-presented for nearly three years and was re-presented just when the three years' period was about to expire and an order of dismissal obtained. It was held that under those circumstances there was really no ' final order.'
2. I agree with the view of King, J., in Ramachandra. Maidu v. Muthu Chettiar1, that the decision in Khadir Sahib v. Viswanatha Aiyar2 does not apply to a case where there was no undue delay in the re-presentation of the prior execution petition. In any case the refusal of the executing Court to excuse the delay ought not to be held conclusive. It must be open to the Court which has to consider whether the order on the previous execution petition is a ' final order' or not to decide on the facts of each case whether the previous order was a ' final order.' I agree with the contention of the appellant's advocate that the decision in Khadir Sahib v. Viswanatha Aiyar2 must be reconsidered. The Legislature must intervene to clarify the matter and not to leave it to the individual idiosyncracies of particular officers who may order a return of the execution petition even when there was no defect and most unreasonably refuse to excuse even a short delay in re-presentation.
3. The civil miscellaneous second appeal is allowed and the orders of both the lower Courts are set aside and the execution application is directed to be taken on file and be proceeded with according to law. Costs in all the Courts will be paid by the respondents.