MACHIREDDI NARAPPA Vs. PRODDATUR SUBBARAYADU

JUDGEMENT

(1.) THIS civil miscellaneous second appeal arises out of proceedings taken in execution of a final mortgage decree. The petitioner is the son of the judgment -debtor. The final decree was passed on 25 -7 -1932. The decree -holder died after the final decree and his son, one Lingaaubbayya, appears to have filed three execution petitions, the first on 21 -1 -1936, the second on 20 -1 -1938 and the third on 31 -1 -1941. The third execution application was dismissed on 21 -2 -1941. Lingasubbayya's sons filed an execution petition on 29 -1 -19 -14 which was also dismissed on 24 -2 -1944. They again filed the present execution petition E. P. No. 366 of 1944, on 24 -7 -1914, just a day previous to the expiry of the 12 years period from the date of the final decree.

(2.) THE present execution petition was signed and verified by Lingasubbayya's sons and was also counter -signed by one Mr. C. S. Narasimha chariar as vakil for the decree -holder, Veerasub -bayya. Mr. Narasimhachariar had no vakalat for Lingasubbayya's sons, the legal representatives of the decree -holder. Mr. Narasimhachariar's son, Mr. Srinivasachariar, however, who was working with his father had a vakalat for the respondents who are the legal representatives of the decree -holder. Objection was taken to the validity of the said execution petition on the ground that the execution petition was presented by a counsel who had no vakalat for the respondents and that, therefore, it was a nullity. It may be mentioned that subsequent to the filing of the petition, which was on 24 -7 -1944 a vakalat was filed by Mr. Narasimhachariar and also by another counsel but that was done on 6 -7 -1946 after the expiry of 12 years from the date of the final decree. It was contended that the subsequent filing of the vakalat, in any event, could not cure the defect, if any, in the presentation of the execution petition. Not content with the objection raised to the issue of the execution, the appellant filed E. A. No. 139 of 1946 in E. P. No. 366 of 1944 under Section 47, Civil P. C. praying that no execution be issued for realising the amount in pursuance of the final decree in O. S. N. 534 of 1930. This application was heard along with the execution petition and both the Courts have held that the presentation of the execution petition without a vakalat was only an irregularity and not an illegality which invalidated the proceedings and that irregularity having been subsequently set right by the filing of a vakalat, the defect in any event had been set right, and that the execution petition must, therefore, be deemed to have been presented properly on the date when it was presented, and allowed execution to issue.

(3.) IN the present case, a written execution petition was filed and it cannot be disputed, though it was contested at a late stage that there was nothing to show that at the time of the presentation the party was not present, thereby suggesting that the presentation could have been made by the party, in which case the question of invalidity of presentation would not arise, that the presentation was by Mr. Narasimhachriar who had a vakalat for the decree -holder alone but not a vakalat for the present respondents. The question is whether such presentation is invalid as rendering the execution petition so presented as having no legal effect. Order 3, RULE 1 states : 'Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party In person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf ' and Rule 4 relates to appointments of pleaders and provides that every appointment should be in writing signed by the party or his agent and that such appointment shall be filed in Court, It is therefore contended that Mr. Narasimhachariar was not entitled to act without a written authority, that is, a vakalat, and he was therefore not a person who can be said to represent the party in respect of the act of presentation of the execution petition within the meaning of Order 3, Rule 1. The position therefore is that the execution petition was presented by a person who was not duly authorised in writing as required under the procedure laid down and it is for consideration whether such a presentation has invalidated the execution petition and the Court has become incompetent to pass any orders on such presentation.