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Shanmugham Pillai Vs. Namagiri Ammal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1944Mad71; (1943)2MLJ454
AppellantShanmugham Pillai
RespondentNamagiri Ammal
Cases ReferredSyed Ghulam Khadir Sahib v. Viswanatha Ayyar
Excerpt:
- - the endorsement of the vakil dated 2nd october, 1937, clearly indicated that the vakil prayed that the delay in re-presentation should be excused, if the delay was not excused, then there is no meaning in the direction 'to be renewed 'in the order dated 7th october, 1937. the decree in this case was passed on 25th august, 1934 and a subsequent petition filed subsequent to 7th october, 1934 cannot be a valid petition in time, unless the order on this petition is treated as a final order on a petition filed in accordance with law......the time limited, it does not acquire the status of a petition-calling for an order unless the delay is excused.5. it is contended for the appellant that since there is no specific order stating that the delay in the re-presentation was excused, and since the word 'rejected' is found in the order dated 7th october, 1937, it must be construed that the district munsiff refused to grant time and rejected the petition, as it was not re-presented in time. but it is urged for the other side that the words ' to be renewed ' in the order indicated that the delay was excused and that the district munsiff was not willing to give further time to file the copies and that was why he was asked to renew it and he rejected it becaues the order directed to be filed was not filed. from the.....
Judgment:

Kuppuswami Ayyar, J.

1. The only point for consideration in this appeal is whether the execution petition was barred by limitation. The appellant was the judgment-debtor in O.S. No. 70 of 1923 on the file of the District Munsiff's Court of Kulitalai. The respondent was the attaching creditor who had attached the decree in this suit--O.S. No. 70 of 1923. The appellant contended that his petition, E.P. No. 57 of 1941 filed on 13th September, 1940 was barred by limitation as it was not filed either within three years from the date of the decree, or within three years from the date of a final order on a valid petition for execution of the decree-. The first Court found that the petition was barred by limitation. On appeal, the learned District Judge of Trichinopoly held that the petition was not barred by limitation holding that the prior execution petition must be considered to be still pending and that therefore the proceedings should be based on the first petition itself. Hence this appeal.

2. The only question for consideration is whether E.P. No. 57 of 1941 on the file of the District Munsiff's Court of Kulitalai was barred by limitation. The decree in the suit was passed on the 25th August, 1934. On the 25th August, 1937, an execution petition was filed. It was returned for the production of the copy of the decree and was re-presented in time on the 14th September, 1937, with the copy of the decree. On the 22nd September, 1937, it was returned with an endorsement that a certified copy of the order making the attachment absolute should be filed and that column 6 should be filled up and that the petition should be re-presented within a week. On the 2nd October, 1937, more than a week after the date on which it was returned, it was re-presented with the following endorsement.

The petitioner has applied for an order of attachment and it has got to be obtained from the District Court. He prays for a fortnight's time more. He also prays that the delay may be excused.

3. On the 7th October, 1937, the District Munsiff passed the following order : ' To be renewed. Rejected ' The present application was filed on 13th September, 1940, within three years from 7th October, 1937. It was contended for the attaching decree-holder that the order 'To be renewed. Rejected.' was a final order on that application and consequently this petition was within time. The District Munsiff found that the petition was barred by limitation and that as the order dated 7th October, 1937, was an order on a petition which was not re-presented in time, it could not be said to be an aider which would be a fresh starting point of limitation. The learned District Judge was of opinion that there was no final order passed on the petition of the 25th August, 1937, and that it must be considered to be still pending and therefore execution proceedings could be continued as if that was the petition that was pending.

4. It is urged before me that, in this case, inasmuch as the petition was returned for being re-presented with a copy of the order making the attachment absolute and the petition was not re-presented within the time fixed by the Court for representation, the order was one passed on a petition which could not be said to be properly pending before the Court and hence it could not afford a fresh starting point of limitation Reliance, for this is placed on the following observations of this Court in Syed Ghulam Khadir Saheb v. Visuanatha Ayyar : AIR1943Mad297 :

It follows that an execution petition returned for amendment but not re-presented has no legal existence till it is re-presented, and if it is re-presented after the time limited, it does not acquire the status of a petition-calling for an order unless the delay is excused.

5. It is contended for the appellant that since there is no specific order stating that the delay in the re-presentation was excused, and since the word 'rejected' is found in the order dated 7th October, 1937, it must be construed that the District Munsiff refused to grant time and rejected the petition, as it was not re-presented in time. But it is urged for the other side that the words ' to be renewed ' in the order indicated that the delay was excused and that the District Munsiff was not willing to give further time to file the copies and that was why he was asked to renew it and he rejected it becaues the order directed to be filed was not filed. From the observations made in Syed Ghulam Khadir Sahib v. Viswanatha Ayyar : AIR1943Mad297 quoted above, it is clear that when an order is passed on an application though re-presented after the time fixed, if the delay is excused, it would be an order which would give a fresh starting point of limitation.

6. So, the only question for consideration is whether the order could be construed to mean that the delay in re-presentation was excused. The endorsement of the vakil dated 2nd October, 1937, clearly indicated that the vakil prayed that the delay in re-presentation should be excused, If the delay was not excused, then there is no meaning in the direction ' to be renewed ' in the order dated 7th October, 1937. The decree in this case was passed on 25th August, 1934 and a subsequent petition filed subsequent to 7th October, 1934 cannot be a valid petition in time, unless the order on this petition is treated as a final order on a petition filed in accordance with law. The petition could not be one in accordance with law, unless the delay is excused. In ascertaining the intention of the Judge who passed the order, when the order is not express, we have to construe it reasonably and the District Munsiff must be taken to have known what the law on the point is. The District Munsiff would not have passed the order ' to be renewed ' if his intention was that the delay was not to be excused; for if the delay was not excused, it would not be possible to file any new petition after 7th October, 1937. In view of the fact that the order does not indicate whether the delay was excused or not and the order can be reasonably interpreted only on the basis that the delay was excused,

7. I find this is a case in which the delay must be considered to have been excused and that therefore the order dated 7th October, 1937 was an order on a petition properly pending in the Court on the date on which the order was passed; and as the order was final not only in point of time, but also on the merits because nothing further could be done on that petition after the order of rejection, it is a final order passed in accordance with law and would furnish a fresh starting point of limitation.

8. In the result the appeal is dismissed with a direction that the District Munsiff will proceed with the petition on the basis that it is not barred by limitation and proceed with the execution of the decree as prayed for in E.P. No. 57 of 1941. I make no order as to costs, as this interpretation of the order was stated for the first time in this Court.

9. Leave refused.


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