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Appaji Chetti Vs. Govindasami Reddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil ;Limitation
CourtChennai
Decided On
Reported inAIR1937Mad760
AppellantAppaji Chetti
RespondentGovindasami Reddi and ors.
Cases ReferredGovindasami Pillai v. Dasai Goundan
Excerpt:
.....to raise any objection in either of the earlier proceedings to the continuance of the proceedings, is estopped by the principle of constructive res judicata from contending in the present application that the earlier applications were not made in accordance with law......petitions could be filed more than 12 years after the decree, it has been held that where previous execution applications of the same nature have been struck off and time given to the judgment-debtor, such acts are merely for statistical purposes and that it must be presumed that the petitions struck off were in law left pending until a fresh application to continue the same proceedings was filed. if however the first presentation was not one in fact and the order of the judge was not made in pursuance of an application made in accordance with law and was therefore void, i do not see how a vakalat filed at a later time can validate the earlier proceedings. whether or no the application was one in accordance with law and whether the acts of the judge were in pursuance of an application.....
Judgment:
ORDER

Horwill, J.

1. The decree was passed on 28th July 1928. An execution petition was filed on 24th July 1931, which was not presented either by the party or by a vakil duly authorized on his behalf. A notice went on the petition and the judgment-debtor pleaded a payment of Rs. 50. Thereupon three months' time was granted and the petition struck off. On 22nd January 1932 another E.P. was filed in which the judgment-debtor, without notice, was arrested. He paid Rs. 25, part satisfaction was recorded and he was released. When the present E.P. was filed on 25th November 1933, the Court discovered that the gentleman who had been conducting the two prior execution petitions was not in possession of a vakalat and it therefore held that the two former petitions were not in accordance with law and. that as the present execution petition was filed more than three years after the decree, it was out of time. It was accordingly dismissed. In revision it is argued (1) that all these three petitions should be considered as one which was interrupted by the District Munsif for statistical purposes and that the vakalat filed in the present application must be deemed to validate all the earlier proceedings; (2) that although the vakil, Mr. Narasimhachari, who had not been given a proper vakalat, was not therefore authorized to conduct the proceedings, yet nevertheless he was a person who, within the meaning of Order 21, Rule 11(2), was a person acquainted with the facts of the case and entitled to make those applications; (3) that on 18th September 1931, in the first E.P. the judgment-debtor acknowledged a payment of 2nd September 1929, within three years of the decree, and that this therefore saves time; and (4) that the judgment-debtor is precluded by the principle of constructive res judicata from raising any objection to the validity of the earlier proceedings as he did not do so during the currency of those proceedings.

2. With regard to certain questions of limitation, especially as to whether execution petitions could be filed more than 12 years after the decree, it has been held that where previous execution applications of the same nature have been struck off and time given to the judgment-debtor, such acts are merely for statistical purposes and that it must be presumed that the petitions struck off were in law left pending until a fresh application to continue the same proceedings was filed. If however the first presentation was not one in fact and the order of the Judge was not made in pursuance of an application made in accordance with law and was therefore void, I do not see how a vakalat filed at a later time can validate the earlier proceedings. Whether or no the application was one in accordance with law and whether the acts of the Judge were in pursuance of an application made in accordance with law, will be presently considered. If all these points are decided against the decree-holder, the subsequent filing of a vakalat will not be of any avail.

3. It is contended that an execution application need not be presented by the decree-holder or by any person specially authorized on his behalf and that the presentation by any person acquainted with the facts is sufficient. It has been contended that the presentation is not an act contemplated by the Civil Procedure Code and is a mere formality. This argument is based upon the wording of Order 21, Rule 11(2); but that rule only describes the form of the application. It is necessary to distinguish between an application proper, which is a request to the Court to take certain proceedings, and the form in which that request is framed in a document which, although very different, is also spoken of as an application. Order 21, Rule 10 says: 'Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree' whereas Order 21, Rule 11(2) merely sets out the forms in which the application is to be drafted. Any person acquainted with the facts can. sign or verify the written application; but only the holder of the decree can apply to the Court under Order 21, Rule 10. Order 3, Rule 1 however permits acts to be done by persons who are not parties if they are the recognized agents or pleaders acting on behalf of the party; so that, reading Order 3, Rule 1 and Order 21, Rule 10 together, it is clear that an application, i. e. the moving of the Court to do an act, must be either by the party himself, by a recognized agent or by a pleader. None of these persons made the present application. The application was made by a person who had no authority at all and was therefore, as stated by the learned Judges in Ananga Bhima Deo v. Modono Mahono Deo AIR 1937 Mad 239, no application at all. In that case the proceedings before the Court ended by the execution petitions being struck off without anything fruitful having been done; but in this case, in both the earlier proceedings, some act was done during the course of the invalid proceedings. For example, the defendant came into Court and pleaded a payment of Rs. 50 and he was granted three months' time for payment of the remainder. In the second execution application he was arrested and ho deposited a sum of Rs. 25 into Court. Certain expressions used by Burn, J. in his judgment in Ananga Bhima Deo v. Modono Mahono Deo AIR 1937 Mad 239 have given rise to the contention that as the executing Court took action, it is a matter of little or no consequence that the proceedings were not properly initiated. They are:

Mr. Jagannadha Das has contended that since upon the applications of 1923 the executing Court took action, issuing notices to the judgment-debtors, posting the case for the various dates of hearing, on some dates ordering costs to be paid and the like, therefore the execution petitions cannot, after all that has been done, be treated as mere waste paper or as if they had not been presented at all. This argument we think would have great force if anything had really been done upon these execution petitions....

4. The question whether the proceedings of a Court would be valid in case something substantial was done, did not of course arise in that case and so the above quoted sentences are obiter. In a case hoard by the same Judges in Jagadisan Pillai v. Narayanan Chettiar : AIR1936Mad284 , an execution petition was filed against the insolvent without the permission of the insolvency Court. It was held that the execution proceedings could not have been legally instituted and the subsequent orders of the Judge in the executing Court were void. No doubt some distinction can be made between that case and the present, in that those proceedings wore instituted in direct contravention of the law, whereas in the present case all that can be said is that they were not properly instituted. It is not however necessary to decide whether the acts of the executing Court have become null and void because we are merely considering the question of limitation, and in deciding whether this application is in time it is necessary to refer only to the provisions of the Limitation Act. Clause 5 of Article 182 states that the time from which limitation begins to run in an execution application is the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order. The present execution application was filed on 25th November 1933. I have already pointed out that the prior applications were not made in accordance with law and therefore whether the subsequent acts of the Court were void or not, the present application is out of time, in that it was not filed within three years of a final order passed on an application made in accordance with law.

5. It has been argued that Section 14, Limitation Act, prevents this application from being time-barred if the time occupied in conducting the previous applications be excluded. Section 14 excludes, in computing the period of limitation, the time taken in prosecuting with due diligence another civil proceeding where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. The executing Court in this case was not one that did not have jurisdiction to execute this decree. It had jurisdiction; but the decree-holder failed to move the Court in accordance with law. Section 14 therefore has no application to a case like the present. It is next argued that the judgment-debtor, because of his having failed to raise any objection in either of the earlier proceedings to the continuance of the proceedings, is estopped by the principle of constructive res judicata from contending in the present application that the earlier applications were not made in accordance with law. It is contended that a duty was cast upon the judgment-debtor of ascertaining by an examination of the records and otherwise whether the application was in proper form. But I am certainly of opinion that that duty is not oast upon the judgment-debtor, nor upon any party to any proceeding. The execution of a vakalat is necessary for the initiation of proceedings, and it is the duty of the Court to see that the person who presents the petition is a person who is entitled under the law to do so. When another party appears in these proceedings, he is entitled to assume that the Court has done its duty and assured itself that the application was properly made by a person authorized to make it. In execution proceedings one is even more reluctant to apply the principles of constructive res judicata, because these principles are applied to such proceedings only by analogy.

6. The last argument is that the writing by the executing Court on 18th September 1931 of 'Rs. 50 pleaded is admitted. N. Ramachandra Ayyar wants time,' was an admission which, by virtue of section 19, Limitation Act, saves time--it being argued that in recording this the Court acted as the agent of the judgment-debtor. I cannot however agree that the Court was making an admission on behalf of the judgment-debtor. It was merely recording an admission made by the (judgment-debtor or somebody appearing on his behalf. In this particular case the admission was presumably not made by the party at all, but by somebody who may not have been authorized on his behalf; but even if the person who made that statement was authorized to do so, it was he who made the admission on the judgment-debtor's behalf and not the Court. The Court only recorded the admission and Section 19, Limitation Act, requires that the admission in order to save limitation, must be made in writing by the party or some person or agent duly authorized on his behalf (See Expln. 2). Govindasami Pillai v. Dasai Goundan, AIR 1921 Mad 704 was quoted in support of this argument. There, Coutts-Trotter, J. pointed out that:

Where money is paid by the person who is bound to pay, requesting the Court to do so, the Court must be deemed to be acting on behalf of the person who is to make the payment.

7. I am unable to draw any analogy between the case of payment of money by the Court, where the payment by the Court is the only method of payment, and the recording of an admission. Section 20 requires a writing to be made by the person who makes the payment, and if the Court, acting as the agent of the person bound to pay, records that the money had been paid by him, the provisions of Section 20 are complied with. In any event, this admission was made on 18th September 1931, which was more than three years after the decree. As I have held that in any case this is not an admission which would save time, it is unnecessary to consider whether the request of the learned counsel for the petitioner should be complied with that this petition should be referred back for a finding whether there was an acknowledgment; but I am certainly of opinion that when he filed the present execution petition, or at any rate as soon as the objection was raised, he should have drawn the attention of the Court to this earlier admission and asked for an opportunity of showing how his petition was in time. I would certainly not be willing to give him an opportunity in a revision application. In the result this petition is therefore dismissed with costs.


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