SUBRAMANIA CHETTIAR Vs. NARAYANAN

JUDGEMENT

(1.) The question for determination in this appeal is whether the execution petition is in time. The first execution petition was presented on 18-4-1948 within three years of the passing of the decree. The second one was presented on 7-3-1946 and was signed and verified not by the decree-holder but by one Natesa Pillai describing himself as the power of attorney agent of the decree-holder. It was returned on 11-3-1946 calling upon the petitioner to produce the power of attorney, copy of the final decree, the encumbrance certificate and the sale papers, and two months' time was fixed for complying with the requisitions. 10 months thereafter, the petition was represented on 12-1-1947 beyond the time granted for compliance. Along with the petition, an application for excusing the delay was also presented. The power of attorney required was not produced and an endorsement was made on the execution petition that the power having been cancelled and the petition having been presented by an agent without such a power of attorney the execution petition might be dismissed. On the application for excusing the delay the Court passed an order dismissing it on 20-1-1947. The execution petition itself was taken up on 27-1-1947, and was dismissed. The order of dismissal was in the following terms: "As per order in E.A. No. 108 of 1947 dated 20th January 1947 delay execution petition having been dismissed, this E. P. is dismissed," The third execution petition out of which the present appeal arises was presented on 7-9-1947. The question is as to whether it could be held that the order dated 27-1-1947 was a final order passed on an application made in accordance with law to the proper Court for execution in which case the third execution petition would be in time. The trial Court held that it was such an order, while in appeal the learned Subordinate Judge of Pudukottai, took a different view and dismissed the petition as out of time. Respondent in the present appeal is not represented.

(2.) It was urged in the lower appellate Court that the second execution petition having been signed and verified by a person who had no valid authority, was not a valid petition at all and in any event, the petition to excuse the delay having been dismissed on 20-1-1947 the order rejecting the execution petition itself on 27-11947 cannot be taken to be a final order within the meaning of Article 182 (5) of the Limitation Act. As regards the first of the contentious, the lower appellate Court found that since under Order 21, Rule 11, Civil P.C. the execution petition need not be signed and verified by the decree-holder himself, but might be signed and verified either by the applicant or by some one proved to the satisfaction of the Court to be acquainted with, the facts of the case, and since Natesa Pillai who was an ex- agent, stated in the petition that he was acquainted with the facts of the case, that would be sufficient compliance with Order 21, Rule 11, C.P.C. The presentation of the execution petition was by the vakil who was found to have had authority. The lower appellate court rightly found that the second execution petition was validly presented into Court. But on the second contention as to whether the order of 27-1-1947 would amount to a final order, within the meaning of Article 182 (5) of the Limitation Act, the teamed Judge placed reliance on two Bench decisions of this Court in --'Ghulam Khadir Sahib v. Viswanathayyar', AIR 1943 Mad 297 (A) and -- 'Kuppuswami Nainar v. Rangaswaml Goundan' AIR 1949 Mad 217 (B), and took the view that as the application for excusing the delay was dismissed and since as a consequence the unnumbered second execution petition was dismissed on 27-1-1947, the order of dismissal would not amount to a final order.

(3.) In AIR 1943 Mad 297 (A), the execution petition was returned on the ground that the sale papers were not filed and the decree-holder was required to represent it within three weeks after remedying the defects. The requisition was not complied with and it was represented nearly three years after without an application to excuse the delay. Subsequently, the decree-holder presented an application for excusing the delay in the representation of the unnumbered execution petition and the delay was not excused. It was held that the unnumbered petition was one in conformity with law, the requirements of Order 21, Rules 11 to 14, Civil P.C. having been complied with, and the mere non-production of the sale papers and the encumbrance certificates could not be held to he an omission which justified the order of return. It was further held that when a petition is returned for the purpose of the petitioner doing something to enable the Court to proceed further with it, the Court really defers its consideration until it is brought back with the detects remedied, that it is only then that Court is placed in a position to consider it judicially and make what can be regarded as a final order on it, and that an execution petition returned for amendment but not re-presented has no legal existence till 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 that case, the application for excusing the delay was rejected, and the consequence was that there was no valid petition before the Court to be ordered or rejected. It was urged there, as in the present case, that the petition was found to he in accordance with law and was wrongly returned and therefore it could not be contended that the petition when presented or re-presented had no legal existence. With reference to this contention, the learned Judges observed at page 300 as follows: