SABAPATHY MUDALIAR Vs. MAHALINGA PADAYACHI

JUDGEMENT

(1.) In O. S. No. 2 of 1932 on the file of the Court of the Subordinate Judge of Cuddalore a decree was passed on 19-12-1932 for a sum of Rs. 6328-6-6 with interest and costs. There was an appeal against that decree to this Court which was dismissed on 31-l-1938. Subsequently an application for scaling down the decree under the provisions of Madras Act IV [4] of 1938 ended in the decree being scaled down in favour of the judgment-debtor. Even prior to the scaling down of the decree, there was various petitions for execution, but still a portion of the decree amount remained unrealised.

(2.) The execution petition out of which the present appeal arises viz., E. P. No. 35 of 1946 was tiled on 17-12 1945 and would be in time according to Article 182 (5), Limitation Act, if, on an application filed on 10-2-1941, a "final order" had been passed. The lower Court has found that there was no step in-aid of the execution as a result of the petition filed on 10-12-1941. It is necessary to set out briefly the various vicissitudes which that application underwent.

(3.) Mr. A. Sundararaja Aiyangar, pleader for the plaintiff in O. S. No. 3 of 1932 acted in this execution petition also. Without being numbered, the petition was returned on 17-12-1941 for complying with five requirements endorsed on that application, of which the last two were that the amount of Rs. 700 realised in execution previously had not been appropriated and deducted on the due dates and also that the copy of the decree as scaled down had not been filed. On 252-1941, the same was re-presented with the following endorsement: "Pray for two weeks time to comply with the order of return and production of copy of amended decree. Re-presented." This prayer was granted on 27-2-1941. On 18-3-1941, the petition was represented after complying with one of the requisitions but with a statement that an application had been made for a copy of the amended decree which had not been obtained and therefore the petitioner would be filing the same as soon as it was received. Again the Court returned the application, stating that return NOS. 4 and 6 bad not been complied with on 18-3-1941. Time for representation was fixed as five days from that date The stipulated time expired on 23-3-1941 which happened to be a Sunday and therefore the re-presentation took place on 24-3-1941 which re-presentation would be proper compliance as regards the time fixed. This re-presentation was not made by Mr. Sundararaja Aiyangar but by Mr. P.S. Gopala Aiyar and is as follows: "I pray for a week's further time to comply with the return. (Sd) P.S. Gopala Iyer, Pleader for Sabapathy Mudaliar vs. Mahalinga Padayachi (03.08.1950 -MADHC) Page 3 of 7 Mr. A, Sundararaja Aiyangar, Pleader, 24.3.1941." On 27-3 1941, the petition was rejected with the following order of Court: "Re-presentation and prayer for extension are unauthorised. Returns not complied with. Rejected 27-3-1941." If the order of the Court dated 27-3-1941 is a "final order" passed on an application made in accordance with law to the proper Court, then there can be no doubt that the two subsequent applications made on 2-1-1943 and 18.12.1944, are both in time and therefore the present petition dated 17.12.1945 is also in time.