Frederick William Gentle, C.J.
1. This appeal arises out of an execution petition filed on Nov-ember 21, 1941, in a mortgage suit, O.S. No 26 of 1927, on the file of the Subor-dinate Judge's Court of Cuddalore in which the final decree was passed on November 25, 1929. This is the judgment-debtor's appeal against the learned Subordinate Judge's order directing execution to issue.
2. The sole question arising is whether the execution petition is barred by the provisions of Article 182(5) of the Limitation Act. It was filed a few days before the expiration of twelve years following the passing of the decree and the only point for consideration is whether the filing took place within three years of the final order in an earlier execution petition.
3. The execution petition, out of which this appeal arises, is the fifth of such petitions filed since the final decree in the suit was passed. The first four petitions were filed on (1) November 21, 1932, (2) November 19, 1935, (3) November 21, 1935, and (4) November 22, 1938. Petitions Nos. 1, 2 and 4 were purported to be dismissed and No. 3 was ' rejected.' It is conceded that, if there was a final order within the contemplation of Article 182(5) in each of those petitions, then the present petition is not barred by limitation.
4. Mr. Panchapakesa Sastri for the judgment-debtors (Appellants) contended that the order, purporting to be of dismissal of petition No. 1 was not a final order and consequently petitions Nos. 2 and 3 were barred by limitation at the dates when respectively they were filed and, similarly, regarding petition No 4, so that the present petition falls within the statutory bar found in Article 182(5). It is conceded that the orders passed in respect of petitions Nos. 2 and 3 were final orders and there is no question relating to those two petitions, save that which arises with respect to petition No. 1 as previously mentioned. It was particularly argued that no final order was passed in petition No. 4 and, consequently, the execution petition out of which this appeal arises was not filed within three years of a final order passed in an earlier petition and is therefore barred by limitation.
5. With respect to Execution Petition No. 1, on 14th February 1932, a direction was given to re-present the petition in two weeks after complying with some requirements; after some other directions had been given, on 16th December, 1932, time to re-present was extended until 11th January, 1933; on 18th January, 1933 (that is seven days after the time for re-presentation had expired on 11th January), the decree-holders informed the Court that the petition was not pressed and it was prayed that it be dismissed; on 23rd January, 1933, the Court made an order in these terms: 'This is not pressed and hence dismissed.'
6. In respect of Execution Petition No. 4, after several extensions of time to re-present it had been ordered, on 3rd January, 1939, time was further extended by three days (i.e., to 6th January); on nth January 1939, (i.e., five days after the expiration of the extended period) the the petition was re-presented with a prayer that it was not pressed for the present and it might be dismissed; on 18th January 1939, the Court ordered the dismissal of the petition.
7. Mr. Panchapakesa Sastri argued that in respect of those two execution petitions when time had expired for re-presentation and in the absence of an application to excuse the delay and an order of Court granting such application, each petition had no legal existence and the position was the same as if it had not been re-presented, it had never emerged into legal existence and the Court was incapable of directing its dismissal; consequently, there was not a final order which had any force or effect, when the Court purported to direct its dismissal. Syed Gulam Khadir Sahib v. Viswanatha Aiyar : AIR1943Mad297 was cited in support of that contention.
8. In the case just now cited an execution petition was filed in 1933; it was returned for compliance with a requirement to file encumbrance certificates; nothing further was done in that respect. In 1936, another execution petition was filed together with the earlier petition; notice having been given to them, the judgment-debtors objected to the second petition on the ground that it was barred by limitation. In June, 1937, a petition was filed requesting that the execution petition of 1933, be treated as re-presented with the necessary papers and the delay be excused; in September, 1937, the Court, by its order, refused to excuse the delay and, in consequence, rejected the 1933 petition, observing that a final order in respect of it had to be passed, and it was rejected as not having been re-presented in time. In that case there was an order refusing to excuse the delay occasioned in the 1933 petition, but such order was passed in an application made in the 1937 petition and not in the 1933 petition; upon that application being refused it was then that the 1933 petition was rejected. The judgment in Syed Gulam Khadir Sahib's case 1 was with respect to the particular facts therein arising, which are not the same as in the present instance. Special reference was made to some observations in the course of the judgment upon which learned Counsel for the appellants placed reliance. At page 363 it was observed that the 1933 petition should have been treated as never having been duly presented, it was not before the Court, consequently it did not require an order to be made for its disposal and it had no legal existence; at page 366 it was further observed that an execution petition returned for amendment but not re-presented has no legal existence until 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 my view those observations refer only to the peculiar facts of the case itself.
9. The facts and circumstances relating to petitions Nos. 1 and 4, in the present instance, are substantially the same and a discussion of petition No. 1 alone is necessary. There is no provision of law requiring a separate application having to be made to excuse the delay in re-presenting an execution petition and an informal oral application in that behalf will suffice. Here, no separate application or petition was filed to excuse the delay in re-presenting the petition. The Court made an order dismissing the excution petition. Such dismissal, ordinarily, is a final order contemplated in Article 182(5). No appeal against the order was preferred and it remains extant.
10. Mr. Panchapakesa Sastri's argument is a challenge to the correctness and validity of the order of dismissal, his contention being that, whilst it purports to be a final order,since the execution petition was not re-presented within the period limited, it should follow that thereafter the petition had no legal existence and in respect of it an order of dismissal could not properly be made and therefore the petition could not have been ' dismissed '. That argument, in effect, is similar to an endeavour to go behind a decree of Court and to contend that the decree is invalid although it has never been set aside. Even assuming that the order of dismissal was made wrongly, nevertheless it was an order and it remains alive and effective unless and until it is set aside by means of a proper procedure which has not taken place in the present instance.
11. In my opinion the judgment-debtors cannot question the validity of the order of dismissal which was made by a Court of competent jurisdiction in respect of an execution petition which was before it. Further, as a formal application to excuse the delay is unnecessary and the Court can informally grant relief in that respect, since the order of dismissal was made after delay in re-presentation had occurred, it can be presumed that what was required to be done was in fact done and that the making of the order of dismissal reflects that there was an order excusing the delay.
12. In my opinion, in respect of excution petitions Nos 1 and 4, each was terminated by a final order of dismissal and that all the execution petitions presented in respect of the decree, including the one out of which this appeal arises, were filed within time and were not affected by the bar of limitation prescribed in Article 182(5) of the Limitation Act. There being no other objection to the correctness of the order of the learned Subordinate Judge directing execution to proceed, it follows that this appeal should be dismissed with costs of the decree-holders.
Satyanarayana Rao, J.
13. I agree.