RAMACHANDRA NAIDU Vs. MUTHU CHETTIAR

JUDGEMENT

(1.) The question in this appeal is whether an execution application filed in 1940 is in time or not. The final decree was passed in December, 1929, and the application now under consideration is the fifth in order of time. The real question in the case depends upon an examination of the dates and orders on the first execution petition. This was presented on the 7 November, 1932, and was returned on more than one occasion for the production of sale papers. Finally, on the 19 January, 1933, a further fortnight's adjournment was asked for by the decree-holder but refused by the Court, which thereupon passed an" order dismissing the application. It is argued in support of this appeal that that order is not a final order within the meaning of Art. 182 of the Limitation Act. It is not denied that when the application was presented in November, 1932, it was in accordance with law and presented to the proper Court.

(2.) The matter seems to me almost too clear for argument. When a Court definitely dismisses an application for execution, I can see no alternative but to regard that order of dismissal as a final order within the meaning of the article. I have however been shown two rulings in an attempt to convince me that such an order is not a final order after all. One is the ruling of the Privy Council reported in Abdul Majid V/s. Jawahirlal (1914) 27 M.L.J. 17 : I.L.R. 36 All. 350 (P.C.). The question there in issue was the date from which the period of limitation began to run; did it run from the date of the decree of the High Court or did it run from the date of the order of the Privy Council dismissing an appeal to it for want of prosecution? It was held by the Privy Council that the dismissal of the appeal to the Privy Council for want of prosecution had the result of placing the appellant in the position which he would have occupied if he had never appealed at all, so that the only decree that existed was the decree of the High Court. It was therefore from the date of that decree that limitation began to run. This is a decision dealing with a matter which is very different from the matter now before me, and I am unable to accept it as authority for the position that no order of any kind can be a final order on an application unless that application has been first of all regularly admitted by the Court which disposes of it. The words which I now have to construe are " the final order passed on an application made in accordance with law to the proper Court for execution. Whether the application of 1932 was numbered or not or was admitted or not, there can be no possible doubt that it was made in accordance with law to the proper Court.,

(3.) The second ruling is of a Bench of this High Court in a recent case reported in Syed Ghulam Khadir Sahib V/s. Viswanatha Iyer . Their Lordships had to deal with an execution application which was filed in October, 1933, and was returned for the production of sale papers as in this case. Instead of being returned with or without sale papers, it was held back for a period of three years and was not finally returned until 1936 along with a new execution application. The decree-holder in that case appears to have insisted upon getting some kind of order from the executing Court, which finally in September, 1937, passed an order rejecting the petition of 1933. It was held by the learned Judges that that order was not a final order within the meaning of Art. 182. In so holding the learned Judges were following a decision of this Court in Chidambaram V/s. Murugesam , where it was held that when an execution petition had been presented and had been returned for the remedying of certain defects and was then held back without being returned for a long period it should be regarded as if it had never existed. It was in accordance with that ruling that the learned Judges held that the petition of 1933, which was not re-presented until 1936 had never possessed any real existence or, in other words, had never been pending. It is impossible, I think, to apply this decision to the facts of the present case. Here there was no disobedience of any order of the Court. There were merely two or three requests for adjournments, the last of which was refused. This is a simple case of a petition presented and disposed of within a period of just over two months and it would be impossible to apply the principles of Chidambaram v. Murugesam to so brief an interval. I therefore see no reason why I should follow the latest Bench decision in this matter as it deals with quite different facts and periods of time, and, as already indicated, I would hold that the order of 19 January, 1933, in this case falls clearly within the scope of Art. 182. That being so, the execution petition of 1940 was admittedly filed within time and this appeal must fail and is dismissed with costs.