V VENKATAPPIAH Vs. VSEETHARAMAVARMA

JUDGEMENT

(1.) E.P. No. 145 of 1940 out of which this appeal arises, was filed on 25 January 1940; and it was in time only if the final order on the prior E.P. No. 984 of 1936 was passed within three years of that date. On 2 December, 1936 notice was ordered to the judgment-debtor to 29 January 1937; and the decree-holder was ordered to pay batta. Under the rules he had to do so within two days. This he did not do; and as he had failed to pay batta even by 15 January 1937, the District Munsif wrote "No batta paid. Dismissed." If 15 January 1937 is the date of the final order, then the present E.P. is out of time. If, however, that order is deemed to be one of 29 January 1937, the date on which the order dismissing the petition should have been passed, then the present E.P. is within time. Both the lower Courts held that the final order in E.P. No. 984 of 1936 must be deemed to have been passed on 29 January 1937. They accordingly ordered execution to proceed. A preliminary objection has been taken to the maintainability of this appeal, on the ground that since the filing of this appeal, the judgment-debtors have filed an application under the Madras Agriculturists Relief Act to have the decree debts scaled down, and it is argued that they are thereby estopped from questioning the correctness of the order of the lower Courts. It would seem from a decision of Wadsworth and Patanjali Sastri JJ. in Subbarao V/s. Seshayya ( 43) 80 A.I.R. 1943 Mad. 7 and from one of Patanjali Sastri J in Satyanayanamurthi v. Srinivasa Jagannadharao ( 43) 30 A.I.R. 1943 Mad. 657, that a Court cannot inquire into an application filed by the judgment-debtor to have his decree scaled down if the judgment-debtor contends that the debt is barred by limitation; because there would then be no debt to scale down. Although these authorities might have been cited in the Court which passed the decree as affording a reason why the Court should not proceed with the application to scale down the debt, yet it does not follow that this Court cannot proceed to determine whether or not the application was barred by limitation and, if it finds that the application was barred by time, to dismiss the execution petition. As a finding was given against the judgment-debtors, they had a statutory right of appeal; and it seems to me that no conduct of theirs in collateral proceedings can prevent them from filing an appeal or from prosecuting it after the appeal has been filed. Mr. Rangachari relies on a decision of Jackson J. in Ramaswami V/s. Chidambaram , but that decision and those which the learned Judge discusses in his judgment, deal with cases in which a Court permits something to be done by a party upon the payment of costs to the other side. It was held in those cases that it is not open to a party accepting the costs to question the order of which the awarding of the costs is a part. As far as I am aware, this principle has been applied only to the acceptance of costs. I am not prepared to extend its application and thereby deprive the debtor either of his right to have his debt scaled down or of his right to appeal. I am not even prepared to say that his application under the Agriculturists Relief Act was barred; because it was found by both the lower Courts that there was a debt to be scaled down, and that finding bound the debtor unless and until it was set aside in second appeal.

(2.) ON the merits of the contention that the application is barred by limitation, it seems to me that the case is somewhat analogous to that where a Judge fixes a date for pronouncing judgment; but actually writes and signs his judgment on some earlier date. The writing and signing of a judgment does not make it effective until it is actually pronounced in open Court on a date of which notice has been given to the parties. So that whatever might be the date on which a Judge may write and sign his judgment, the date of the judgment is the date on which it is delivered in Court. It was quite open to the Judge in the case we are now considering to have decided to dismiss the application because batta had not been paid; but as he had posted the case to 29 January 1937, and as that was the only day on which under the rules the Judge could dismiss the application, it was only on that date that the order must be deemed to have been made. It is unnecessary to consider what the position might have been if, in fact, the order of 15 January 1937, had been pronounced on that day in open Court, or had been communicated to the parties. There is no reason to think that the order of 15th January 1937, was made known to them before 29 January 1937. Other High Courts have taken the view that it is the date on which the order is made known to the parties that is the date of the judgment or order; but the point seems not to have arisen in this Court. The finding of the lower Courts was correct. The appeal is, therefore, dismissed with costs.