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Syed Ghulam Khadir Sahib and ors. Vs. Minor Viswanathayyar, by His Mother and Next Friend, Parvathi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Reported inAIR1943Mad297; (1942)2MLJ768
AppellantSyed Ghulam Khadir Sahib and ors.
RespondentMinor Viswanathayyar, by His Mother and Next Friend, Parvathi Ammal and ors.
Cases Referred(Vide Venkatarama Sastri v. Venkatanarasimham
Excerpt:
- - , cannot be supported and i must accordingly hold that the unnumbered petition cannot be regarded as having been pending till it was rejected on 29th september, 1937. 5. if an execution petition is returned for making good defects pointed out, within a time limited by the order, the course to be followed by the decree-holder has been indicated in chidambaram v. i am clearly of the opinion that it is not permissible for the court below to rely on the language of the earlier order, nor on the reasons which prompted the previous judge to make what in the eye of the law is but a brutum fulmen......a final order in respect of the unnumbered executionpetition, i reject it as not represented in time.'30th september, 1937. e.p. no. 228 of 1936 dismissed on the peti-tioner's pleader making the following indorse-ment: 'in the light of the order passed on the execution petition presented by the decree-holder on 2nd october, 1933, and returned on 5th october, 1983, and which was re-presented on 29th september, 1936, on which final orders were passed on 29th september, 1937, i propose to renew the execution of this decree by a fresh execution petition. this e.p. no. 228 of 1936 is therefore not pressed.'2nd september, 1940. the last e.p., viz., no. 169 of 1940 was filed. the last execution petition filed on 2nd september, 1940, was presented to the court within three years of the order.....
Judgment:

Krishnaswami Ayyangar, J.

1. The only question which arises for consideration in this appeal is whether the last execution petition E.P. No. 169 of 1940, filed on 2nd September, 1940 is barred by limitation under Article 182 (5) of the Indian Limitation Act. The learned Subordinate Judge in the Court below has held that it is not. The appellants who are the judgment-debtors contend that the decision of the Subordinate Judge is erroneous.

2. The relevant facts and events are the following:

6th March, 1930. Preliminary mortgage decree in favour of theplaintiff. 13th August, 1930. Final decree.1931. E.P. No. 24 of 1931 for sale of the hypotheca.24th August, 1931. E.P. No. 24 of 1931 closed and removed aftersome of the items of mortgaged property were sold and Rs. 14,871 was realised.2nd October, 1933. Fresh E.P. filed, but never numbered.5th October, 1933. The above E.P. was returned with the endorse-ment, 'Sale papers should be filed with encumbrance certificates tip to date of the petition. 'Returned.'28th September, 1936. E.P. No. 228 of 1936 filed along with the un-numbered E.P., returned on 5th October,they objected that the E.P. was barred bylimitation.17th June, 1937. Thereupon E.A. No. 316 of 1937 was filed re-questing the Court to treat the application dated 2nd October, 1933, as re-presented with the necessary sale papers. There was also a request for the delay being excused.29th September, 1937. Order refusing to excuse the delay and rejectingthe unnumbered E.P. with the observation: 'But since as observed in Muhammad Abu Bakkar Maracair v. Ramakrishna Chettiar1932 64 M.L.J. 401, I have to pass a final order in respect of the unnumbered executionpetition, I reject it as not represented in time.'30th September, 1937. E.P. No. 228 of 1936 dismissed on the peti-tioner's pleader making the following indorse-ment: 'In the light of the order passed on the execution petition presented by the decree-holder on 2nd October, 1933, and returned on 5th October, 1983, and which was re-presented on 29th September, 1936, on which final orders were passed on 29th September, 1937, I propose to renew the execution of this decree by a fresh execution petition. This E.P. No. 228 of 1936 is therefore not pressed.'2nd September, 1940. The last E.P., viz., No. 169 of 1940 was filed.

The last execution petition filed on 2nd September, 1940, was presented to the Court within three years of the order on E.P. No. 228 of 1936, which was the next preceding petition. E.P, No. 228 had been filed on 28th September, 1936, but was not pressed, and therefore dismissed on 30th September, 1937. The next earlier execution petition was the one presented on 2nd October, 1933. This petition was not taken on file and numbered; but was returned on 5th October, 1933, on the ground that the sale papers were not filed and the decree-holder was required to re-present it within three weeks after remedying the defects. The requisition was not complied with, and indeed nothing was done till 28th September, 1936, though the decree-holder took back the petition from Court on its return. It was on this date, viz., 28th September, 1936, that the fresh E.P. No. 228 of 1936 was filed. The unnumbered petition which had been returned, was also filed along with it, but without any application to excuse the delay. It will be remembered that the three weeks' time granted by the order returning the petition expired on 26th October, 1933. On notice going to the appellants-judgment-debtors in E.P. No. 228 of 1936, they took the objection that it was barred by limitation presumably under Article 182 (5) of the Limitation Act, as more than three years had elapsed from the date of the final order on E.P. No. 24 of 1931 passed so early as 24th August, 1931. The decree-holders then realised the difficulty into which they had got, and attempted to mend matters by filing an application to excuse the delay in the re-presentation of the unnumbered application. This they did by E.A. No. 316 of 1937 filed on 17th June, 1937, in which they put forward an excuse which was found to be totally false. The result was that the delay was not excused. The proper order in the circumstances for the Court to pass was simply to dismiss it. The unnumbered execution petition which should have been treated as never having been duly presented was not properly before the Court and consequently it did not require an order to be made for its disposal. In fact, having no legal existence no order could be made on it. But the learned Subordinate Judge who dealt with this application, E.A. No. 316 of 1937 felt bound by a decision of Madhavan Nair, J., in Muhammad Abu Bakkar Maracair v. Ramakrishna Chettiar 1932 64 M.L.J. 401 to hold that the unnumbered petition, though returned and not represented in time, must still be deemed to have been pending and therefore did require a judicial order to dispose of it. Accordingly he made an order rejecting the petition as not presented in time. This order was passed on 29th September, 1937.

3. In the Court below it was contended on behalf of the respondents that the order of 29th September, 1937, was a final order passed on an application made in accordance with law for the execution of the decree within the meaning of Article 182 (5). If it was, the last execution petition of 2nd September, 1940, would of course be in time, having been filed within three years of that order. The learned Subordinate Judge accepted this contention and has accordingly held that the unnumbered petition of 2nd October, 1933, was not only one in accordance with law, but also that the order of 29th September, 1937, was a final order which would save limitation.

4. There can be no doubt that the unnumbered petition was one in conformity with law, the requirements of Order 21, rules 11 to 14, Civil Procedure Code, having been complied (vide Natesa v. Ganapathia 1916 32 M.L.J. 621 : I.L.R. Mad. 949). The mere non-production of the sale papers and the encumbrance certificates cannot be held to be an omission which justified the order of return. For it is not till a later stage that these papers can be called for under rule 194 of the Civil Rules of Practice. I therefore agree with the learned Subordinate Judge in holding that the petition was in accordance with Jaw, and it was wrongly returned. But the more important question to be considered is whether the order of the 19th September, 1937, can be held to be a final order within the meaning of Article 182 (5). The learned Subordinate Judge has held that it is, and in doing so he appears to have paid regard more to the language of the order than to its substance and to the circumstances in which it came to be passed. There is ample authority for the proposition that an order merely returning a petition as defective is not a final order, though in special circumstances such as those which appeared in Kandasami Chetttar v. Gokuldoss Madanji : AIR1941Mad731 , it may amount to one, notwithstanding the language employed. The true test 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. (Vide Chidambaram v. Murugesam : AIR1939Mad841 , Kesavaloo v. Official Receiver, West Tanjore : AIR1936Mad613 , Chidambara Nadar v. Rama Nadar : AIR1937Mad385 and Rama Reddi v. Motilal Daga : AIR1938Mad326 . When a petition is returned for the purpose of the petitioner doing something to enable the Court to proceed further with it, the Court really defers its consideration until it is brought back with the defects remedied. It is only then that the Court is placed in a position to consider it judicially and make what can be regarded as a final order on it. But what is the legal position, if the petition is taken back on its being returned, and not re-presented to the Court within the time given Madhavan Nair, J., sitting as a single Judge had to consider this question in a case where, an execution petition had been returned for certain defects, and was only re-presented with a later execution petition which itself would be out of time but for the order returning the earlier petition. The learned Judge expressed the opinion that no final order had been passed on the earlier petition. No exception can be taken to this view of the effect of a mere order of return. But he went further and held that as no final order had been passed, the petition must be regarded as pending till such an order is made. This view of the law has been adversely criticized and held to be erroneous by Burn and Stodart, JJ., in Chidambaram v. Murugesam : AIR1939Mad841 , for the obvious reason that if right it would enable a decree-holder to extend the period of limitation at his will by presenting a defective execution petition, and on its return by refraining from re-presenting it. The point is not in controversy as it is now conceded that the decision of Madhavan Nair, J., cannot be supported and I must accordingly hold that the unnumbered petition cannot be regarded as having been pending till it was rejected on 29th September, 1937.

5. If an execution petition is returned for making good defects pointed out, within a time limited by the order, the course to be followed by the decree-holder has been indicated in Chidambaram v. Murugesam : AIR1939Mad841 . The same view is reiterated in Official Receiver of Ramnad v. Narayanaswami Tevar : AIR1942Mad216 in the following words:

If the petition is returned to the decree-holder for some amendment or compliance with some requisition, it is his duty to re-present it within the time allowed or to get an extension of the time allowed, or to show cause why he should not comply with the requisition, or to pursue the matter in some way until he gets what can properly be described as the final order upon it. If, having received back the petition, he takes no further action upon it, then he should be treated as if he had never put in his petition at all.

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. In the present case, as we have already said, the application for excusing the delay was rejected by the Court on 29th September, 1937, and the consequence was that there was no valid petition before the Court to be ordered or rejected.

6. Two grounds have been urged before us in support of the contention that the order of 29th September, 1937, should be regarded as a final order. In the first place it is maintained that the fact that the petition was in accordance with law and was wrongly returned, distinguishes the present case from the principle of the decision referred to. I regret I am unable to agree. In Official Receiver of Ramnad v. Narayanaswami Tevar : AIR1942Mad216 the petition which was returned was in conformity with the law, but still it made no difference in the decision arrived at. A contrary opinion was expressed by Somayya, J., in Sundarabalakadiresa Tevar v. Avudaiammal : AIR1942Mad495 . But surely an order of return, right or wrong, if made by a competent Court is not a mere nullity and cannot be ignored by the party affected. Nor is it open to him to take back the petition and choose his own time for re-presenting it. As ruled in the case cited, he must re-present it within the time limited by the order, and if he does not, he must move the Court for an extension of time, or for excusing the delay. If the Court excuses the delay, the re-presented petition will date back to its original presentation. If the Court however refuses to do so, the position must be the same as if it had never been re-presented, and consequently it never emerged into legal existence. (Vide G. R. Naidu v. Venkatasami Naidu : AIR1940Mad215 . The learned Subordinate Judge does not appear to have taken a different view so far as this point is concerned.

7. The second ground has reference to the language of the order of 29th September, 1937 and the reasons which operated on the mind of the learned Judge in making it. When a lawful petition is properly before the Court, but the Court rejects it, the order may be a final order. (Vide Venkatarama Sastri v. Venkatanarasimham : AIR1938Mad144 .) In the present case the delay in re-presentation not having been excused, there was no need for the Court to deal with the unnumbered petition, which had no legal existence or make an order on it. If a different course was taken, it was because of the decision of Madhavan Nair, J., which has since been declared to be erroneous.

8. But whatever the view entertained by the Subordinate Judge who made the order and whatever he might have purported t6 do, it is for the Court dealing with the present E.P. No. 169 of 1940, to consider the legal character of the earlier order. The question whether an order is a final order within Article 182(5) is not to be judged by reference to what the Court passing the order thought at the time, nor by the language employed by it. It is for the Court before which the nature of the order is properly in question, which has to decide the matter and the decision must be arrived at on an independent consideration of the correct rule of law, as applied to the true facts. Otherwise the erroneous order of the Judge who passed the order of 29th September, 1937, albeit based on a wrong view of the law, will be perpetuated so as to prejudice the determination of the point by the Court charged with the duty of determining it. It cannot for a moment be contended that the Judge who made that order was competent to pronounce on a matter which is legitimately within the province of the Court whose duty it is to decide on a later occasion whether that order was a final order. That Court is the lower Court on which the duty lay to pronounce on the nature of the order of 19th September, 1937, for the purpose of Article 182 (5). And in doing so, the Court should have come to its own conclusion independently of what the previous Judge said or did when making the order. I am clearly of the opinion that it is not permissible for the Court below to rely on the language of the earlier order, nor on the reasons which prompted the previous Judge to make what in the eye of the law is but a brutum fulmen.

9. The learned Judge in the Court below appears to have been mainly influenced by the circumstance that the order was made in the presence of the appellants and was therefore binding upon them. He has observed that it was open to them to have appealed against it, which they did not do. I cannot see how it can be said that the judgment-debtors are bound to appeal, seeing that the order was in their favour and not against them. A party has no right to appeal against a decree or order wholly in his favour simply because there is some error in the reasoning which led to the making of the order. The learned Judge has correctly appreciated the position when he says that the views taken by the parties are irrelevant when considering the true legal effect of an order. But he however fell into an error in holding himself bound by the terms of the earlier order, simply because the Court which passed it intended to pass a final order in obedience to an exploded decision of this Court. Nor can I agree with him in holding that the language of the order or the reasoning behind it binds the appellants. They are only bound by the order to the extent that it rejected the petition for excusing the delay filed by the respondents and no further. Indeed that was the only order, and it was one that they themselves had invited the Court to pass. I am therefore of opinion that the decision of the Court below cannot be supported. The appeal is accordingly allowed and the E.P. No. 169 of 1940 is dismissed. The respondents should pay the costs of the appellants here and in the Court below.

Kunhi Raman, J.

10. I agree.


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