MAHALAKSHMI AMMAL Vs. SUBRAMANIA CHETTIAR

JUDGEMENT

(1.) The appellants were the decree-holders in O.S. No. 41 of 1925 on the file of the Court of the Subordinate Judge of Cuddalore. Their execution petition was dismissed by the lower appellate Court on the ground that it was barred by limitation. The decree in this case was passed on 28 March, 1933. The first application for execution was filed on the 28 June, 1933. The judgment-debtor was committed to jail under an order passed on 8 July, 1933. A second application was filed on the 4 July, 1936. It was returned for amending some of the entries therein on the 8 July, 1936, but was re-presented on the 30 July, 1936, with a prayer that the delay in re-presentaion may be excused and praying for ten days more to comply with the requirements. The delay was excused and the time was granted. It was re- presented on the 10 August, 1936, and it had to be returned again as some of the defects pointed out were not rectified and ten days more was granted on the 18 August, 1936. On the 26 August, 1936, the defects were rectified but the petition was presented with an endorsement that it was not pressed and that the petition may be dismissed for the present. On the 28 August, 1936, the learned Subordinate Judge passed an order " rejected ". The application out of which this appeal arises was the petition filed on 26 August, 1939. It was contended for the judgment-debtor that the petition was barred by limitation inasmuch as the previous petition had been rejected on the ground that it was not pressed and without being numbered.

(2.) The first Court held that the requirements had been complied with, that there were no defects, that it was only a case of default in prosecution of the application, that therefore there was a final order on a petition filed in accordance with law passed on the 28 August, 1936, on the previous application and that therefore this petition was in time. The learned District Judge on appeal held that the petition was not in time inasmuch as the previous application had been rejected without being numbered or admitted.

(3.) The learned District Judge appears to have dealt with several applications of a similar character in which the orders passed on previously filed re-presented applications were claimed to be the fresh starting points of limitation and he has written a judgment in one of them and has referred in the judgment appealed against to that order as containing the reasons for his decision. He relies there on the decisions in Sathappa Chettiar V/s. Chockalingam Chettiar (1940) M.W.N. 69, Chidambaram Chettiar V/s. Murugesam Pillai , and G.R. Naidu v. Venkataswami Naidu for the conclusion arrived at by him. He seems to be of opinion that these decisions support his view that when a petition is not numbered and is rejected, the order of rejection cannot be taken to be a final order passed on an application filed in accordance with law and cannot furnish a fresh starting point of limitation. In this case, as already pointed out: above, the defects pointed out in the original application were rectified and the petition was dismissed not because of any defects in the petition as amended. As the petitioner did not press the application it was dismissed for default of prosecution. It is true that it was not registered and admitted by its being given a number.