NADELLA SATYANARAYANA Vs. YAMANOORI VENKATA SUBBIAB

JUDGEMENT

(1.) (Ramaswami J. of the Madras High Court.) This appeal raises a point of importance daily arising in our Courts in the mofussil.

(2.) THE facts are: Mr. P. Viswanatha Rao, Pleader of the Markapur Bar, filed E.P. No. 15 of 1950 in O.S. No. 464 of 1935. It is common ground that this E.P. by itself is in proper form and has also been signed by the party as well as by the pleader. It has been presented by Mr. P. Visvanatha Rao and it is undisputed that at the time when he filed the E.P. he had no vakalat. In fact he has subsequently attempted to rectify this error by getting a vakalat from his client and filing it. The opponent naturally pointed out that this petition had no legal effect not having been made in accordance with law and is a nullity and relied upon the Bench decision of this Court in Nandamani Ananga Bhima Deo v. Madana Mohana Deo, : ILR (1937) Mad 320: AIR 1937 Mad 239) (A). The learned District Munsiff upheld the plea of the respondent and dismissed the E.P. There was an appeal therefrom to the learned District Judge of Kurnool and he set aside the order of dismissal and remanded the petition for fresh disposal in the light of the following observations:

(3.) IN : 1950 -2 Mad LJ 256: (AIR 1951 Mad 340) (B), the facts were E.P. 36G of 1944 filed just a day previous to the expiry of the 12 years period from the date of the final decree was signed and verified by the deceased decree -holder Lingasubbayya's sons and also counter -signed by one Mr. C.S. Narasimhachariar as vakil for the decree -holder. Mr. Narasimhachariar had no vakalat for Lingasubbayya's sons, 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 and that therefore it was a nullity. It may be mentioned that subsequent to the filing of the petition a vakalat was filed by Mr. Narasimhachariar and also by another counsel. But that was done subsequently 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 E.P. Both the Courts below held that the presentation of the E.P. without a vakalat was only an irregularity and not an illegality which invalidated the proceedings and that the irregularity having been subsequently set aright by the filing of the vakalat, the E.P. must be deemed to have been presented properly on the date on which it was presented. There was a Civil Miscellaneous Appeal in the High Court and it was contended there that the lower Court should have followed the Bench decision cited above and held that execution could not issue. Before Krishnaswami Nayudu J., the respondent relied upon decisions in a contra sense by the Allahabad High Court in the Full Bench case Kanhaiyalal v. Panchayati Akhara, : ILR (1949) All 973: (AIR 1949 All 367) (C), the Special Bench decision of the Allahabad High Court in Wali Mohamed Khan v. Ishak Ali, : ILR 54 All 57: (AIR 1931 All 507 (FB)) (D), and the Bench decision of the Bombay High Court in Hirabai v. Bhagirath Ramachandra & Co.,, ILR (1945) Bom 819; : (AIR 1946 Bom 174) (E). The learned Judge expressing his agreement with these decisions and holding that ILR (1947) Mad 320: (AIR 1937 Mad 239) (A), would not apply to the present case, dismissed the C.M.A.