CHENNAMMAL Vs. CHENNAPPA GOUNDAR AND OTHERS

JUDGEMENT

(1.) THIS appeal is against the order of the learned District Judge, Salem, setting aside the order of the District Munsif, Dharmapuri, holding that the execution application No. R. E. P. 642 of 1952 in O. S. No. 43 of 1945 was in time, and not barred by the law of limitation.

(2.) TWO points arise for consideration in this appeal. The first is that from a perusal of the records it is found that the appeal preferred by the judgment -debtors against the order of the learned District Munsif was not competent in that it was filed 24 days after the time for the appeal had expired. The order of the learned District Munsif was passed on the 20th March 1953. An application for certified copy of the decree was made on the 30th March 1953. But this application was not proceeded with, and it was dismissed and struck off. Another application was filed on the 22nd April 1953, for the certified copy of the judgment and decree. Even this application was not proceeded with, and it was also struck off. A third application was filed on the 14th May 1953, for a certified copy of the decree and judgment, and on this application action was taken and copies were duly supplied, It is after obtaining copies under this application dated 14th May 1953, that the appeal itself was presented as late as 12th June 1953. When these dates are kept in view, obviously the appeal preferred on the I2th June 1953, was out of time. It is curious that neither the office nor the District Judge who dealt with the first appeal, ever noticed that the appeal was out of time. The appeal was, however, heard and disposed of, against which the present appellant has since preferred this C. M. S\ Appeal.

(3.) HOWEVER that be, even on the merits I do not think that any relief could be given to the respondent in this appeal. The last order was passed on the 20th April 1948, in E. P. No. 318 of 1947. The order in that execution petition was to the effect that it was dismissed, but above the record showing this order, there is an endorsement. It is not known by whom the endorsement has been made, because it is in a different ink and in different handwriting from that in which the relevant order appears on the docket sheet. This is to the effect that delivery was not effected as the petitioner was absent'. In all probability, this endorsement is the result of the return by the bailiff who had been issued the warrant (for delivery of the property) for execution. It will not be wrong to assume that on the basis of this return of the bailiff, endorsed by some person or other on the docket, the learned District Munsif dismissed the application. But what is material is only the order dismissing the application.