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V. Seetharama Chettiar Vs. T.R. Muthukrishna Chettiar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1947)2MLJ553
AppellantV. Seetharama Chettiar
RespondentT.R. Muthukrishna Chettiar
Cases ReferredSeshagiri Rao v. Subbarami Reddi
Excerpt:
- - 5. on the petition having been instituted, it was endorsed by the learned subordinate judge on the 13th march, 1942, notifying that the result of the petition to the debt conciliation board should be stated, a copy of the order should be produced, the costs in the previous execution amounted to rs. if there is any palpable error, or to put it perhaps better, if there is failure to comply with the requirements of rule 21 of order 21 then the petition is not one in accordance with law. finally, on 8th july, 1942, it was endorsed as follows :not taken back. clearly the earlier petition was one in accordance with law......1935, for execution against the third defendant judgment-debtor alone. the learned subordinate judge held that it was barred inasmuch as more than three years had expired since there had been a final order of disposal of any previous execution petition. in regard to a petition, which was unnumbered, instituted on the 9th march, 1942 and which, according to the records, was rejected on 8th july, 1942, there was no final order in respect of it and consequently it did not save limitation in respect of the execution petition filed in 1944. if the previous execution petition was one which fulfilled the requirements of law and in respect of which a final order was made in july, 1942, then the present execution petition is not barred.4. the relevant details regarding the unnumbered petition.....
Judgment:

Frederick William Gentle, C.J.

1. This is an appeal against the decision of the learned Subordinate Judge of Salem dismissing an execution petition on the ground that it was barred by the provisions of Article 182 of the Limitation Act.

2. No appearance has been made on behalf of the respondent, judgment-debtor. Mr. T. K. Srinivasathathachari has appeared for the appellant-decree-holder and has given us very frankly and fully all the facts and, I am sure, all the relevant authorities. So the absence of the respondent or any one appearing on his behalf has not occasioned any harm.

3. The petition was instituted on 24th June, 1944, with respect to a decree for a considerable sum of money passed in O.S. No. 58 of 1934 in the Subordinate Judge's Court of Salem on the 25th November, 1935, for execution against the third defendant judgment-debtor alone. The learned Subordinate Judge held that it was barred inasmuch as more than three years had expired since there had been a final order of disposal of any previous execution petition. In regard to a petition, which was unnumbered, instituted on the 9th March, 1942 and which, according to the records, was rejected on 8th July, 1942, there was no final order in respect of it and consequently it did not save limitation in respect of the execution petition filed in 1944. If the previous execution petition was one which fulfilled the requirements of law and in respect of which a final order was made in July, 1942, then the present execution petition is not barred.

4. The relevant details regarding the unnumbered petition of 1942 are the following. After setting out the requirements of such a petition, laid down in Order 21, Rule 21, the petition states that in a previous petition the costs amounted to Rs. 87-11-o ; the receipt of Rs. 900 towards the judgment-debt was included but not the date of its receipt nor was there reference made to the result of an application by the first defendant judgment-debtor under the Debt Conciliation Act which application was closed under Section 25 of that Act.

5. On the petition having been instituted, it was endorsed by the learned Subordinate Judge on the 13th March, 1942, notifying that the result of the petition to the Debt Conciliation Board should be stated, a copy of the order should be produced, the costs in the previous execution amounted to Rs. 48-8-0 (and presumably not Rs. 87-11-o as stated in the details contained in the petition) and the date of the receipt of the Rs. 900 should be given.

6. Rule 11 of Order 21 does not require any reference or details regarding an application to the Debt Conciliation Board nor the date of receipt of any moneys paid in part satisfaction. In both these respects, therefore, although the information which was sought to be obtained was not furnished, it is clear that the execution petition was not in any way defective ; the amount of costs of the previous petition (alleged to have been Rs. 87-1l-o although the Court states it was Rs. 48-8-0) was the only error, as far as one can see, alleged in regard to the details given in the petition. If there is any palpable error, or to put it perhaps better, if there is failure to comply with the requirements of Rule 21 of Order 21 then the petition is not one in accordance with law.

7. In Ramanadan Chetti v. Periatambi Servai I.L.R.(1883) Mad. 250 there was an inaccuracy in the statement in the petition regarding the costs of previous execution proceedings and it was held by a Division Bench that, although the petition did not comply in every particular with the requirements of Section 235 of the Code (corresponding to Order 21, Rule 21 of the Code of 1908), it was substantially an application made in accordance with law. In Rama v. Varada I.L.R. (1892) Mad. 142 an execution petition omitted any reference to earlier applications in execution and it was held that by reason of those omissions it could not be found that the petition was not one made in accordance with law. In Hegde v. Sheenappa Shetti (1933) 38 L.W. 877 the amount of the judgment-debt was inaccurately stated in that the sum decreed by the lower Court was given whereas on appeal the amount' had been reduced. There, also, it was held that the application was not one which did not comply with the provisions of law.

8. In light of the authorities it is manifest that an incorrect statement, assuming it is incorrect, regarding the amount of costs of an earlier petition is not such an error as to make the petition one which is not in accordance with law. In my view the petition fully complied with all the necessary requirements which should have been contained in it and although there may be one small error it does not render the petition void or in any way null.

9. Another objection to the petition of 1942 was that it was unnumbered. In Seshagiri Rao v. Subbarami Reddi : AIR1945Mad154 Mad.648(FB), the question of the absence of a number to an execution petition was a subject for consideration and, after reference to a number of decided authorities of this Court, it was observed at page 690 of the report in the judgment of Sir Lionel Leach, C.J., giving the judgment of the Full Bench that the non-numbering of the application was of no consequence ; and, after referring to Muthukrishna Iyer v. Sivarama Aiyar A. A. O. No. 437 of 1943, it was further observed that when a petition is otherwise in accordance with law, absence of a number is of no importance whatever. It is clear that no objection can be taken to the legality of the previous execution petition on the ground that it does not bear any number.

10. The learned Subordinate Judge based his decision mainly upon the disposal of the earlier petition. After the endorsement, to which reference has previously been made, by the Subordinate Judge requiring further information relating to the application before the Debt Conciliation Board, the date of payment of Rs. 900 and in regard to costs of the previous execution, the petition came before the Court on a number of occasions and was adjourned. Finally, on 8th July, 1942, it was endorsed as follows : 'Not taken back. Rejected.' The learned Subordinate Judge, in the Court below, held that there was no final disposal of the petition and he observed in his judgment that rejection was merely a direction consigning the petition to the record room. I am unable to follow that observation or to know the source of the learned Judge's information. One would have thought that nothing could be more final in regard to an application made to Court than for the Court to decide that the application is rejected. The rejection of the application can only mean its dismissal and nothing else This matter, however, has been the subject of decision in three cases in this Court. In Parankusa Naidu v. Ayyanna Naidu (1943) I M.L.J 445 King, J., held that rejection of an execution petition is a final order. That decision was accepted and followed by WadsWorth, J., in Nataraja Pillai v. Narayanasami Iyer (1947) I M.L.J. 393 ; there the decree-holder neglected to comply with the Court's requirements in regard to some execution petition, and ultimately the Court rejected it for non-compliance; it was held that, in that instance, the rejection was a final order. Lastly, in Seshagiri Rao v. Subbarami Reddi 1 an execution petition was ' rejected.' It was held by a Full Bench that such a rejection was a final order dismissing the execution petition.

11. In my opinion the learned Subordinate Judge was wrong in holding that there was no final order disposing of the earlier execution petition and that the present petition was consequently barred by the provisions of Article 182 of the Limitation Act. Clearly the earlier petition was one in accordance with law. That it was unnumbered was a matter of no consequence and when it was rejected a final order disposing of it was made. It follows that execution application No. 370 of 1944, which was instituted on the 24th June, 1944, was presented within three years of the dismissal and final disposal of the previous petition and consequently it is not barred by any of the provisions of the Limitation Act. This appeal must, therefore, be allowed and the execution petition remanded to the lower Court for disposal in accordance with law. The appellant is entitled to his costs of the appeal.

12. The records will be returned to the lower Court forthwith and a request made for quick despatch in the disposal in order that there will be no question hereafter that limitation has prevented further proceedings arising out of the petition which is being remanded back.

Tyagarajan, J.

13. I agree and have nothing to add.


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