Krishnaswami Nayudu, J.
1. The judgment-debtor is the appellant in this civil miscellaneous second appeal. In execution of a decree passed against him on 3-4-1935, his properties were attached and brought to sale in E. P. No. 104 of 1947. The execution petition was posted for sale to 6-2-1948 and for final hearing to 13-2-1948. On 6-2-1948, the following endorsement is found on the E. P. 'No instructions, no bids, sale stopped. E. P. closed.' On the 11th February 1948 the decree-holder filed an execution petition No. 73 of 1948 with a prayer that it may be treated as a continuation of the prior E. P. No. 104 of 1947 and for fixing a date of sale and for proceeding with the sale.
2. Two objections were raised on behalf of the appellant (i) that the order dated 6th February 1948 was a final order and E. P. No. 73 of 1948 having been presented 12 years after thedate of the decree, is barred by limitation & (ii) that the counsel having reported no instructions on the 6th of February 1948, he is not entitled to present E. P. No. 73 of 1948 and the presentation is not a proper presentation.
3. As regards the first of these objections, the learned Counsel relies on Rule 187 of the Civil Rules of Practice and argued that there was a default on the part of the decree-holder and that the order closing the petition amounted to a dismissal of the petition and therefore it was a final order. But it must be noted that Rule 187 will have application only, in cases of default in compliance of any order of court as to payment of batta and other steps to be taken as provided therein. Rule 187 has therefore no application to this case. Further the learned counsel relied upon Order 21, Rule 69 and contended that inasmuch as the sale was posted for the 6th of February 1948 and neither the decree-holder nor his counsel appeared and requested for an adjournment, the order disposing of the petition amounted to a dismissal and, therefore, it was a final order. Order 21, Rule 69 only empowers the court to exercise its discretion to adjourn any sale under certain terms and conditions provided therein but it does not say anything as to what the court ought to do in case the sale is not adjourned. The court has rightly in such cases closed the petition for statistical purposes and it cannot amount to a final order dismissing the petition. This position is covered by the authority of the judgment of Happell J. in 'Gangaraju v. Bhimalingam', : (1947)2MLJ423 , where it has been held that where in an execution application the property is put up for sale but is not sold because there were no bidders and thereafter the District Munsif makes an order that the petition was 'closed', there is no final disposal of the petition and a subsequent execution application filed would be in continuation of the prior one. I, therefore, consider that the petition, having been closed only for want of bids the order closing the petition does not amount to a final order and E. P. No. 73 of 1948 is a continuation of the previous execution proceedings.
4. The only other question that has to beconsidered is whether the petition has beenproperly and validly presented. From the original of the execution petition, it is found thatthe decree-holder himself has signed it and thatwill be a valid petition but the question hasbeen whether the presentation by the Counsel,who is stated to have reported no instructionson the previous occasion, would amount to proper representation. As matters stand, thereappears to be some doubts expressed to as tothe power of the counsel, who reports no instructions orally to represent his client in subsequent proceedings. The learned counsel arguedthis question and I consider it necessary to dealwith it.
5. The learned counsel for the appellant relied upon a judgment of Horwill J. in 'Krishna Pillai v. Ranganathan Pillai'. 1950 2 M. L. J. 759. In that case, as the defendants were not ready their advocate through another advocate reported no instructions. The suit was then decreed ex parte. In an application to set aside the ex parte decree by the advocate under the same vakalatnama, it was held that it was not a proper vakalatnama as the advocate has withdrawn it when he reported no instructions in the suit. The application to set aside the ex parte decree was dismissed. The learned Judge agreed that the dismissal was proper and observed that when the Vakil reports no instructions, it means that he withdraws his vakalatnama, and if authority was necessary for that position, the learned Judge referred to the decision in 'Manickam Pillai v. Mahu-dam Bathummal', 47 Mad. 819 and observed that that decision supported the view taken by the learned Judge.
It does not appear however that the provision of law relating to the withdrawal of vakalats and the termination of the vakil's authority was placed before the learned Judge. Order 3, Rule 4 (2) provides that every appointment of a pleader shall be filed in court and shall be deemed to be in force until determined with the leave of the court, by a writing signed by the client or the pleader as the case may be and filed in court or until the client or the pleader dies or until all proceedings in the suit are ended so far as regards the client. The language of Order 3, Rule 4 (2) is clear that the power given under the vakalat is in force until determined as provided by the rule, i.e., by means of a document signed by the client or pleader as the case may be. Thus when the pleader wants to terminate his authority, he can file in court a document withdrawing his vakalat from the client and when the client wants to terminate the authority of his vakil he can file a document in writing signed by him. There is no such writing in the present case and admittedly the counsel orally reported no instructions. I consider it is necessary that to determine the authority of a counsel some document in writing is necessary whatever may be the form of the document showing an intention on the part of the counsel to determine the vakalat. In the absence of such a document, it cannot be said that the vakalat has been duly and properly determined.
The decision in 'Balakrishna Aiyar v. Muthamal'. : AIR1925Mad316 supports this view. In that case, it was held that the mere fact that a vakil after having appeared for the party at many hearings says he has no instructions does not amount to his withdrawal from the undertaking in his vakalatnama unless it is so stated. There is no difficulty in view of the specific provisions in the Code of Civil Procedure to say that in the present case the presentation by the counsel on the 11th of February 1948 was a proper presentation even apart from the signature of the party in the execution petition, since there is admittedly nothing in writing to cancel the vakalatnama. (6) The learned counsel for the appellant however relied upon the observations of the learned Chief Justice in the Full Bench case reported in 'Manickam Pillai v. Mahudam Bathumal', 47 Mad 819 also referred by Horwill J. in 'Krishnapillai v. Rajamanickam Pillai'. 1950 2 M. L. J. 759 as supporting the contention that even an oral representation by the counsel that he has no instructions to appear would amount to cancellation of the vakalat notwithstanding the specific rule in the Civil Procedure Code. It was held that when a deader engaged in a case reports that he has no instructions, whether after he has asked for an adjournment and been refused or not, he must be deemed not to have appeared in the case thereafter even if there be no formal withdrawal in writing of the vakalat. It was held further that the court must be deemed to have given its leave within the meaning of Order 3, Rule 4(2), C. P. C. to the pleader to withdraw his vakalat when it does not object to such withdrawal. In that case, on the day when the case came up for hearing, the pleader asked for an adjournment and stated that if adjournment were not granted, he had no further instructions to go on with the case. He had previously filed a vakalat in the ordinary form. He did something more than the mere asking for an adjournment. He took the plaint which he had drawn and signed and endorsed it as follows:
'I have no instructions except to apply for an adjournment.'
The provision in the Civil Procedure Code was slightly different in language. Sub-rule 2 was in the following terms :
'Every such appointment, when accepted by a pleader shall be filed in court and shall be considered to be in force until determined with the leave of the court by a writing signed by the client or the pleader as the case may be and filed in court.......'
The learned Chief Justice observed that the statute does not require the writing containing the withdrawal by the pleader of his vakalat to be in any specified form and that that which he endorsed on the back of the plaint was a perfectly good written withdrawal from his duties and obligations under the vakalat. I entirely agree that there is nothing even in the present rule prescribing the form of withdrawal excepting that there must be a withdrawal in writing signed by the pleader. Since there was an endorsement on the plaint that he had no instructions except to apply for an adjournment, it was held that it amounted to a proper withdrawal of his vakalat. The following observations of the Chief Justice in that case were relied upon to show that even a representation would be sufficient to terminate the vakalat:
'But, while basing our decision on that shortground, we think, in view of some decisionsof that court, one recently reported decisionand another which is unreported that weought to point out that when this matterwas discussed in those cases, attention doesnot seem to have been drawn to the decisionof the Privy Council in 'Radhakrishnan v.The Collector of Jaunpuri', 23 All 220 The facts of that case are set out in aquotation from the judgment of the Subordinate Judge, which runs as follows:
'That day (i.e., the day fixed for hearing)the pleader for the applicant stated thathe could not conduct the case, and he hadreceived no instructions from his client.Thereupon the court proceeded to try thecase and tried and decided the issues onthe evidence adduced on the plaintiff'sbehalf and decreed the suit against theapplicant.' 'Their Lordships held in that case that theapplicant could not be held in the circumstances to have appeared. We trust that ifthis matter comes before the courts again,notice will be taken of that decision, because,so far as appears, a wider question is determined there, as there is no statement -- afeature that exists in this case -- to theeffect that the pleader has filed an instrument in writing taking himself out of hisvakalat, a withdrawal on his part whichOrder 3. Rule 4 contemplates.
'The exact question put to us is, if when a pleader reports no instructions, whether after he had asked for an adjournment and been refused, or not, the court is correct in holding that the party for whom, the pleader was appearing has not appeared. We think that the only answer can be that, at any rate, in the circumstances of this case, the pleader cannot be deemed to have appeared.'
7. The learned counsel contends that it may be but he is not definite that the unreported decision may be referred to in the judgment of the Full Bench decision in 'Balakrishna Aiyar v. Muthammal : AIR1925Mad316 . The question that arose for determination in that case was whether simple reporting of no instructions orally would amount to a proper withdrawal of the vakalat. The Privy Council decision referred to by the learned Chief Justice was 'Radhakishan v. Collector of Jaunpur', 23 All 220. The only question that arose for decision there was whether after reporting no instructions, the physical presence of the advocate in court would amount to appearance even though the party was absent since there was no written representation withdrawing his vakalat. The learned Chief Justice's opinion in -- 'Manickam Pillai v. Mahudam Bathummal', 47 Mad. 819 was that it does not matter whether the reporting of no instructions was in writing or oral. Once the counsel states that he is unable to proceed with the case and had no instructions to do so, it amounted to non-appearance of the party and that was probably the subject-matter of the unreported decision mentioned in the judgment. The observations of the learned Chief Justice could not have been intended to apply to a case like the present one where the counsel reports no instructions without anything in writing.
For a proper termination of the vakalat, Order 3, Rule 4 (2) must be strictly observed in the sense that there must be something in writing; the form of the document is immaterial provided the intention to terminate the authority is clearly expressed. The decision of Horwill J. reported in 'Krishna Pillai v. Ranganatha Pillai', 1950 2 M. L. J. 759 was based on the observations of the learned Chief Justice in 'Manickam Pillai v. Mahudam Bathummal', 47 Mad 819 quoted above, which have relation to the question of termination of counsel's authority under a vakalat and the attention of the learned Judge has also not been brought to the express provision in the Civil Procedure Code, viz., Order 3, Rule 4(2). I have already found that in this case the execution petition No. 73 of 1948 even otherwise has been duly and properly presented. The appellant fails in both the objections.
8. The appeal is dismissed with costs. Leaverefused.