1. This is an appeal against the decision of the Subordinate Judge of Ramnad dismissing E. P. No. 72 of 1937 as barred by limitation, and declining to revive a prior unregistered petition for execution returned on 15th January, 1935 for compliance with a direction of 29th November, 1934, and represented along with E. P. No. 72 of 1937 on 18th August, 1937 with a prayer to revive it if necessary.
2. The decree sought to be executed is the final decree for sale on a mortgage passed on 21st October, 1932, and an application for execution was filed in 1933 (E. P. No. 19 of 1933). Notice was ordered and the petition was dismissed for non-payment of batta. The next petition is the unregistered petition, and it was filed on 23rd August, 1934. The application was made by the appellant the Official Receiver in whom the estate of the decree-holder had vested, and it was returned on 13th September, 1934 with the endorsement:
Affidavits in support of the transfer of the decree and also the vesting order should be filed. Sale papers and encumbrance certificate and Union tax should be filed. Columns G and H should be revised. Vakil's fee claimed is excessive. Serial number of this petition should be stated in the cause title.
Two weeks were allowed for complying with the directions, and the petition was re-presented on 27th September, with the endorsement:
Re-presented--encumbrance certificates have been applied for and not received yet. It is prayed that two weeks' time may be granted for filing the sale papers etc.
The petition was returned on 28th September, with an endorsement that prayer for time should be made by means of an application supported by an affidavit, and it was re-presented on 9th October, with the endorsement:
Re-presented. The vesting order and other main records are reported by the Official Receiver to have been sent by him to the High Court and that it may take a long time for the High Court to return them. Inasmuch as the Official Receiver, a responsible officer of this Honourable Court, has made statements in columns D and J about the vesting in him and he being a transferee decree-holder, i.e., by operation of law, the filing of any affidavit may be dispensed with. The filing of the vesting order may also be dispensed with for the present. If the defendants deny the vesting then it may be ordered to be produced. Vakil's fee has been claimed as per Rule 84 on page 253 of Vol. I, Civil Rules of Practice on the amount due as shown in column G. If it is pointed out how the calculation is wrong, I am ready to amend it. Serial number of this petition can be known only after it is filed and as soon as it is filed the serial number will be given. As regards sale papers, I have since obtained encumbrance certificates. It may take some time for the original decree-holder to arrange for preparing other sale papers--I pray for two weeks' time for the same and I am presenting an application for more time.
An application for time (E.A. No. 401 of 1934) was also filed, and time was granted till 23rd October. The petition was re-presented on 23rd October, with the endorsement, 'Complied with and re-presented', and it was returned on 25th October, with the endorsement:
Vakil's fee on Rs. 19,424 comes to Rs. 170-10-11. Judgment-debtor's interest has not been stated in column, J. As regards the second item, to state whether the judgment-debtor has got both warams or melwaram only, what is the jama for the village as per account?
Two weeks were allowed for compliance and the petition was re-presented on 8th November with the endorsement:
Re-presented. The fees portion has been amended. For the rest, the Village Munsif of Athiyathur has been addressed by the Official Receiver. Since it may take some time for getting the reply, if the execution petition is now filed, the information will be given on or before the date fixed for notice to defendants.
The petition was returned on 13th November, with the endorsement:
Direction Number 2 has not been attended to. Time two weeks.
And it was re-presented on 27th November, with the endorsement:
Re-presented--When a letter was written by the Official Receiver of Ramnad to the Village Munsif of Athiyathur, asking him to give particulars regarding the jama, direction No. 2 and the warams belonging to the defendants, the said Village Munsif without giving the said particulars, has reported that the defendants 1 to 4 have no claim over the second item of property. It is therefore necessary that further two weeks' time should be granted for writing to the said Village Munsif again and ascertaining the particulars regarding jama and waram.
The petition was returned on 29th November, with the endorsement:
Prayer for time should be moved by means of an application supported by an affidavit.
And it was re-presented on 20th December, with the endorsement:
Represented. In spite of the best efforts of the Official Receiver, Ramnad, he is not able to get the information as regards the jama and warams. The Official Receiver has no objection for fixing any amount as the upset price for the second item. In these circumstances the petition may be filed without the information as regards the jama and the warams and without any further information.
The petition was returned on 21st December, with the endorsement:
Extension of time has not been applied for by means of an application to re-present this on 20th December and the directions called for on 25th October, have not been attended to.
And it was re-presented on 11th January, 1935 with the endorsement:
Re-presented--In view of the reply of 20th December, the filing of a petition for extension of time may be excused. The directions of 25th October, have been attended to, namely, by amending the vakil's fee portion (vide re-presentation dated 8th November) and by saying that other information is not available (vide re-presentation of 20th December)
The petition was again returned on 15th January, with the endorsement that the direction of 29th November had not been attended to and it was not re-presented till 18th August, 1937 when it was filed along with E. P. No. 72 of 1937.
3. The present application (E. P. No. 72 of 1937) was filed more than three years after the dismissal of E. P. No. 19 of 1933 and it would be barred by limitation unless the order of 15th January, 1935 on the unregistered petition is the final order thereon within the meaning of Clause 5 of Article 182, of the Limitation Act or the unregistered petition filed on 23rd August, 1934 should be deemed to be pending. The initial question therefore is whether the order of 15th January, is a final order and as pointed out in Chidambaram v. Murugesam : AIR1939Mad841 , in which all the previous decisions were considered, the expression 'final order' means an order putting an end to the application in respect of which it is made and not merely the last order in point of time. An order requiring the petitioner to do something in order that the Court may proceed with his application does not even contemplate the end of the execution petition, and the unregistered petition in this case was returned on 15th January, for attending to the directions of 29th November, that prayer for time should be moved by means of an application supported by an affidavit. Further action on the petition was contemplated, and the decision in Kandasami Chetti v. Gokuldas Madanji & Co. : AIR1941Mad731 , is clearly distinguishable. In that case on an application filed in 1932 to transmit the decree to Bombay for execution, an order of transmission was made in August, 1932, and another application was filed in February, 1935, to transmit the decree again to Bombay for execution. The decree had not been received from Bombay and the application was returned on 27th February, 1935 with the endorsement:
Copy of the decree has not been received from the High Court, Bombay--returned.
The petition was not returned for remedying any defect nor was any action required to be done by the applicant. Nothing could have been done until the decree was received from Bombay, and it was held that in the circumstances the only interpretation that can reasonably be given to the language was that the Court had decided that it would have nothing further to do with the application. Such an order would be a final order, but it is impossible to give the same interpretation to the order of 15th January in this case. The petitioner was required to attend to the directions of 29th November, and the order was in no sense a final order on the petition.
4. The order of 15th January, 1935 is thus of no avail and it remains to consider whether the unregistered petition should be deemed to be pending. No doubt the petition did conform to the requirements of rr. 11 to 14 of Order 21 of the Civil Procedure Code but the amount claimed towards vakil's fees was incorrect and the vesting order had not been filed. The petition had to be returned on that account, and the sale papers which should not properly be called for till a later stage were also required. Exception was not taken to this course and the vakil's fee was amended on 8th November, 1934 after further returns. Time was requested on 27th November, for furnishing information regarding the interest of the judgment-debtor in the second item and the petition was returned on 29th November, with the endorsement that prayer for time should be moved by means of an application supported by an affidavit. The petition was represented on 20th_ December, and it was returned on 21st December, for attending among other things to the direction, regarding the filing of an application for time. The petition was re-presented on 11th January, with a request to excuse the filing of a petition for extension of time and it was returned on 15th January, with an endorsement that the direction of 29th November, had not been attended to. The petition was not represented thereafter and as pointed out in Chidambaram v. Murugesami : AIR1939Mad841 , 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 is not permissible for a decree-holder to extend the period of limitation by simply failing to re-present an execution petition returned for rectification and the proper way to deal with such a petition as that is to treat it as not having come into existence at all. The suspension of the proceedings in such cases is due to the act or default of the decree-holder in not re-presenting the petition, and as held in C.R. Naidu v. Venkataswami Naidu : AIR1940Mad215 , the petition has no judicial existence pending its re-presentation. If it is re-presented within time, the date of the original presentation will be the date of the execution petition, and the same position would result if it is re-presented late with an application to excuse the delay and the delay is excused. It cannot be deemed to be pending if it is withheld for an inordinately long period and represented without any application to excuse delay merely in the hope of saving limitation for a fresh application, and we are unable to subscribe to the view taken in C.M.S.A. No. 193 of 1939 that even in such cases the application should be deemed to be pending. As pointed out in Krishnamachari v. Chengalraya Naidu : (1939)2MLJ469 , an application returned for complying with certain requirements and not re-presented within a reasonable time even if none was fixed by the Court cannot be held to be of any avail, and no question of improper disposal or illegal dismissal arises here as in Krishnamachari v. Chengalraya Naidu and C.M.S.A. No. 193 of 1939. The unregistered petition was returned on 15th January, 1935 for compliance with the direction of 29th November, 1934 and it was not re-presented till 18th August, 1937 when it was filed along with E. P. No. 72 of 1937. It was not accompanied by any application to excuse the delay nor was the Court requested to excuse the delay. The reason for the delay was not even stated and execution of the decree was barred by that time. The suspension of the proceedings till then was due to the act or default of the decree-holder in not re-presenting the petition, and the decision in Qamar-ud-din-Ahmad v. Jawahir Lal is not applicable. In the circumstances the unregistered petition cannot be deemed to be pending or revived and the decision of the Subordinate Judge is correct.
5. The appeal therefore fails and is dismissed with costs.