Skip to content


Kamalammal Vs. Rajarathna Naicker - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1949)1MLJ66
AppellantKamalammal
RespondentRajarathna Naicker
Cases ReferredSatyanarayana v. Kaji Reddi
Excerpt:
.....execution of the decree was not accompanied by a copy of the decree as required by rule 164 of the civil rules of practice then in force, but it complied with the terms of section 235 (corresponding to present order xxi, rule 11(2). it was held that there was no omission or error in the contents of the application itself which consequently was perfectly in accordance with law. 557, may be good law at the time it was decided, as rule 164 of the civil rules of practice, as it then stood, did not have the force and effect as if enacted in the code. now if as stated already, the combined effect of sections 121, 122 and 127 is to make the rule 142 part of the code, then the provision in rule 142 that the judgment-creditor shall together with the first petition for transmission of the decree..........are sections 39 and order xxi, rules 5 and 6, civil procedure code and rule 142 of the civil rules of practice. these applications are not required to be in any particular form as required in the case of applications for execution under order xxi, rule 11 but under rule 142, civil rules of practice, the judgment-creditor shall together with the first petition for execution or transmission of the decree, file in court a certified copy of the decree sought to be executed. in this case copy of the decree was neither filed in court together with the application on 21st july, 1935, nor was it produced on 31st july, 1935, when the petition was re-presented although there was an order of court dated 25th july, 1935, directing the petitioner to pro-duce a copy of the decree. in rule.....
Judgment:

Somasundaram, J.

1. This is a civil revision petition against the order of the District Judge of Vellore confirming the order of the District Munsiff of Vellore. This arises out of execution proceedings and the question for determination is whether the application made for execution is barred by limitation. The material facts are these. A decree was passed on 21st July, 1932, by the Court of the District Munsiff of Ranipet. In February, 1935, the village to which the parties belong was transferred from the jurisdiction of the Ranipet Court to that of Vellore Court. On 21st July, 1935, the last day of limitation, an execution petition for transmission of the decree was filed in the Court of the District Munsiff of Ranipet. The petition was returned with an order of Court on 25th July, 1935, that the decree-holder should produce a copy of the decree and seven days' time was granted for the same. The petition was re-presented on 31st July, 1935, with an endorsement ' not pressed.' The petition, when it was re-presented, was not accompanied by a copy of the decree. On 1st August, 1935, the petition was dismissed as ' not pressed.' A similar application was filed on 21st July, 1938, and it was also similarly dismissed on the 5th August, 1938. Another application for transmission to Vellore Court was filed on 23rd June, 1941, and an order of transmission was passed on 26th June, 1941. The decree was received in Vellore Court on 2nd July, 1941 and it was returned on 6th January, 1942, as no steps were taken. The application out of which this revision arises, E.A. No. 64 of 1944, was filed in the Court of the Ranipet District Munsiff on 10th June, 1944, and transmission was ordered on 13th June, 1944, and the present execution petition was filed on 1st July, 1944. This petition is resisted on the ground that it is barred by limitation.

2. The grounds of objection are (1) the petition presented on 21st July, 1935, to the District Munsiff 's Court, Ranipet, is not ' in accordance with law ' within the meaning of that expression in Article 182 (5) of the Limitation Act, (2) the order passed on 1st August, 1935, dismissing the petition as ' not pressed ' is not a final order within the meaning of these words in Article 182(5).

3. I will deal with the second ground first, viz, whether the order dismissing the petition as ' not pressed ' is a final order. It is now well-settled that the words ' final order ' imply that the proceeding has terminated so far as the Court passing it is concerned. Vide R.T. Kesavaloov. Official Receiver, West Tanjore : AIR1936Mad613 , and Chidambara Nadar v. Ramanadar : AIR1937Mad385 . The true test as laid down in Syed Gulam Khader Sahib v. Viswanatha Aiyar : AIR1943Mad297 is whether the order puts an end to the application in respect of which it is made so far as the Court passing it is concerned. Applying the above test, I should say that the orders of the Court of the Ranipet District Munsiff passed on 1st August, 1935, and 5th August, 1938, are final orders. The fact that the petition is dismissed as not pressed does not make any difference. Vide Muthu Venkatasubba Reddiar v. Thangavel Chetti : AIR1948Mad462 .

4. Now this final order must be on an application made in accordance with law. The question now is whether the application made on 21st July, 1935, (which was re-presented on 31st July, 1935) is an application made in accordance with law. The application was made to the Court of the District Munsiff at Ranipet for trans-mission of the decree to the Court of the District Munsiff, Vellore, The provisions of the Code of Civil Procedure applicable to such applications are Sections 39 and Order XXI, Rules 5 and 6, Civil Procedure Code and Rule 142 of the Civil Rules of Practice. These applications are not required to be in any particular form as required in the case of applications for execution under Order XXI, Rule 11 But under Rule 142, Civil Rules of Practice, the judgment-creditor shall together with the first petition for execution or transmission of the decree, file in Court a certified copy of the decree sought to be executed. In this case copy of the decree was neither filed in Court together with the application on 21st July, 1935, nor was it produced on 31st July, 1935, when the petition was re-presented although there was an order of Court dated 25th July, 1935, directing the petitioner to pro-duce a copy of the decree. In Rule 142, the word used is ' shall ' which shows that the provision is mandatory. The question is whether the violation of such a mandatory provision makes the application one not in accordance with law.

5. The learned Counsel for the petitioner contends that it is not necessary to file a copy of the decree and the application does not cease to be one made in accordance with law. He relies on Pachiappa Achari v. Poojali Seenan I.L.R. (1905) Mad. 557 and Venkatarama Sastri v. Venkatanarasimham ( : AIR1938Mad144 , in support of his contention. These two decisions relate to applications for execution apparently to Courts which themselves passed the decree. In Mathuranath Ray Chowduri v. Janakinath Ray Chaudhuri I.L.R. (1929) Cal. 996, it was held that

an order to file a copy of the decree is needless because the Court in which this application was made was the Court which made the decree and if any reference to the decree was needed, the original could easily have been examined.

In Pachiappa Achari v. Poojali Seenan : AIR1938Mad144 the application for execution of the decree was not accompanied by a copy of the decree as required by Rule 164 of the Civil Rules of Practice then in force, but it complied with the terms of Section 235 (corresponding to present Order XXI, Rule 11(2). It was held that there was no omission or error in the contents of the application itself which consequently was perfectly in accordance with law. In short the decision is to the effect that if the provisions of Order XXI, Rule 11, Civil Procedure Code are com-plied with, it does not matter even if the order of the Court in any other particular is not complied with. This decision was given on 10th August, 1905, and the Procedure Code was amended in 1908. The amendment introduced several new sections and we are concerned only with three of them for the purpose of this case. They are Sections 121, 122 and 127. The combined effect of these sections is that the rules contained in the Civil Rules of Practice must therefore be read along with Section 39 and Order XXI, Rules 5 and 6 for the purposes of transmission of the decree and with order XXI, Rule 11 for the purpose of application for execution. If this is so, then under Rule 142, Civil Rules of Practice the decree-holder shall together with the first petition for execution or transmission of the decree sought to be executed file in the Court a copy of the decree sought to be executed. Pachiappa Achari v. Poojali Seenan I.L.R. (1905) Mad. 557, may be good law at the time it was decided, as Rule 164 of the Civil Rules of Practice, as it then stood, did not have the force and effect as if enacted in the Code. The amendment of the Code in 1908 has altered the legal effect of these rules. But Venkatarama Sastri v. Venkatanarasimham : AIR1938Mad144 , which is also to the same effect as Pachiappa Achari v. Poojali Seenan I.L.R. (1905) Mad. 557 is decided under the present Code. There is no reference to Rule 142 of the Civil Rules of Practice and therefore there is no discussion as to the effect of it in view of the new Sections 121, 122 and 127 of the Code. But this decision relates to an application for execution and not for transmission of decree. Apart from this in Govind Prasad v. Pawankumar (1943) 2 M.L.J. 121 : 1943 I.L.R. 1943 Nag. 669 (P.C) their Lordships of the Judicial Committee have made a distinction between a rule which is permissive and a rule which is mandatory. Following this decision and applying the distinction aforesaid, a Division Bench of our High Court in Satyanarayana v. Kaji Reddi : AIR1946Mad61 has held

that an execution application which does not state correctly the number of the suit relating to the decree sought to be executed is not a petition in accordance with law.

Now if as stated already, the combined effect of Sections 121, 122 and 127 is to make the Rule 142 part of the Code, then the provision in Rule 142 that the judgment-creditor shall together with the first petition for transmission of the decree file the certified copy of the decree sought to be executed is mandatory and failure to comply with such a mandatory provision makes the petition one 'not in accordance with law.'

6. The petition filed on 21st July, 1935 (and re-presented on 31st July, 1935, was unaccompanied by a copy of the decree) is not in accordance with law and the order passed thereon will not enure to the benefit of the petitioner herein. The objection that the present petition is time-barred prevails and the civil revision petition is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //