1. E.P. No. 40 of 1945, which the appellant decree-holder filed, was the last he could file within the period of 12 years the law allowed him. The application was filed on the 24th September 1945. The appellant was directed to furnish the sale papers. Time was extended periodically, and on the 31st October, 1945, he applied for a further three weeks. The order of the Court ran,
Time extended finally 2nd November, 1945.
The sale papers were not filed on the 2nd November, 1945, and on that day the learned District Munsiff dismissed the application for execution. That order was confirmed on appeal to the learned District Judge of North Arcot.
2. The main contention in second appeal was not one that was presented for the consideration of either the trial Court or the lower appellate Court. The learned advocate for the appellant contended, that, as the learned District Munsiff had granted to the decree-holder on his application dated the 31st October, 1945, time till the 2nd November, 1945, to file the sale papers, independently of any question, whether the appellant could comply with the orders of the Court for the production of the sale papers, or even whether he intended to comply with those orders, the order of dismissal passed on the and November, 1945, was one without jurisdiction. He relied on Perumal Nadan v. Swananji Nadachi I.L.R. (1915) Mad. 583, Muthu Chettiar v. Narayanan Chettiar (1927) 55 M.L.J. 274 : I.L.R. 51 Mad. 672, and Chinniah Chettiar v. T. Kumaraswamiah (1933) M.W.N. 88. In Muthu Chettiar's case (1927) 55 M.L.J. 274 : I.L.R. 51 Mad. 672, on the facts it was clear that the application was dismissed in the forenoon when there were still many hours of the usual Court hours left on the day fixed for compliance with the orders of the Court. The facts have not been set out in full in Chinniah Chettiar's case (1933) M.W.N. 88. In Perumal Nadan's case I.L.R. (1915) Mad. 583, the earliest of these, Oldfield and Seshagiri Aiyar, JJ., after pointing out that time for performance was granted till the 3rd December, 1912, observed,
The learned Subordinate Judge therefore had no jurisdiction to pass his order of dismissal before 4th December, 1912.
3. That was obviously to give effect to the principle, reiterated in these decisions that, when the Court fixes a date for the fulfilment of a certain condition, the person on whom that obligation is imposed will have the whole of that day for complying with the orders. Whether the whole of the ' day ' should be limited to the normal Court hours of the day or to the whole of the calendar day does not appear to have been specifically raised or decided in any of these cases; but I do not think that question need be discussed now in view of the implied decision in Perumal JVadan v. Swananji Nadachi I.L.R. (1915) Mad. 583 Oldfield, J. was definitely of opinion that at no time on the last of the dates fixed for compliance with an order of the Court could that Court have any jurisdiction to dismiss the application for default.
4. The learned advocate for the respondents pointed out that the order of the learned District Munsiff in this case 'Time extended finally 2nd November, 1945 ' should be virtually construed to mean that time was extended finally till the 1st November, 1945. No doubt the word 'till' was not used before '2nd November 1945.' That on prior occasions when this very execution petition came up for orders before the same learned District Munsiff, applications for further extension of time were made on the last of the dates appointed for the production of the sale papers is certainly not enough to construe the order of the 31st October, 1945, to mean that when the Court fixed the 2nd November, 1945, it meant that time was granted only till the 1st November, 1945, that is, upto and inclusive of the 1st November, 1945. The only reasonable interpretation of the order dated the 31st October, 1945 appears to me to be that time was granted till the 2nd November, 1945. In that case the contention of the learned advocate for the appellant, that the Court had no jurisdiction at all to dismiss the application on the 2nd November, 1945, itself for non-compliance with the orders of the Court, must prevail.
5. The orders of the lower Court and that of the lower appellate Court are set aside, and the execution petition is remanded for disposal afresh according to law. Costs upto this date of these proceedings will be costs in the cause and will abide the final result of the execution petition.