C R PARANKUSA NAIDU Vs. AYYANNA NAIDU

JUDGEMENT

(1.) This petition raises the vexed point as to what constitutes the "final order" on an execution application presented in accordance with law. The order, which is the subject-matter of the petition, was passed on 23 December 1937 upon an application filed on 2lst June 1937. If that order is a final order, this appeal must succeed as the present application would then be in time. It has been held by both Courts below that the order is not final. The full facts are that the application was made on 2l June, 1937 in the Court of Small Causes at Trichinopoly and was endorsed by the Court saying, "Vakil has no power, Returned. Time seven days." In fact the application was not taken away from the Court, but allowed to remain in the office and subsequently in December an order was passed rejecting it. Now it is clear to my mind that the order rejecting an application of this kind, because the applicant will not comply with certain requisitions is a final order. It is an order which in the words of Syed Ghulam Khader Sahib V/s. Viswanatha Iyer ( 43) 30 A.I.R. 1943 Mad. 297 "puts an end to the application in respect of which it is made so far as the Court passing it is concerned." It is however argued for the respondent that this is not a final order, because the non-compliance of the applicant with the requisition of the Court, together with the failure to ask for any excusing of delay necessarily means that the application must be considered never to have had any existence. It is true that there have been recent decisions of this Court-one in Official Receiver of Ramnad V/s. Narayanaswami Thevar ( 42) 29 A.I.R. 1942 Mad. 21 and the other which has just been quoted in Syed Ghulam Khader Sahib V/s. Viswanatha Iyer ( 43) 30 A.I.R. 1943 Mad. 297 which make it clear that an application which has been returned to a party and held back by that party for three years or so without taking any action whatever to carry out the instructions of the Court, is an application which must be deemed never to have existed. But I am not prepared to extend the principle which has been applied to facts of that kind to the facts in the present case.

(2.) It seems to me there are two important points of distinction-one is that in the present case there is no direct question of intermediate negligence and subsequent action on the part of the petitioner. This is a case in which the Court finds that the petitioner leaves his application within the court precincts, and the Court determines to put an end to it. It is not a case in which an artificial order is obtained from the Court by the representation of an application after an inordinately long interval. Secondly, the order of rejection in this case is passed within six months. There is none of that sense of artificiality about it which is produced by an order of rejection passed without any intermediate action or orders of any kind after an interval of three years or so. It seems to me that this is a clear case of an application being presented, and being dismissed within a reasonable time by the Court itself, on the Court's own initiative, because the party will not comply with the Court's order.

(3.) It is conceded that the application need never have been ordered to be returned to the party at all; that it was in every respect in accordance with law and that it was filed in the proper Court. It seems to me in these circumstances that the order of 23 December 1937 is the final order contemplated by Art. 182, Limitation Act and that the application, which is the subject-matter of this revision petition was within time. The revision petition is accordingly allowed and the application of the petitioner restored to file and directed to be disposed of according to law. The respondents must pay the petitioner's costs of this revision petition. Costs of the lower appellate Court will abide the event.