NATESA PILLAI Vs. GANAPATHIA PILLAI

JUDGEMENT

(1.) The sole question for disposal in this appeal is whether the decree holder s execution petition filed on 18th December 1912 is an application for execution in accordance with law within the meaning of Article 182 of the Indian Limitation Act (Schedule I). It was ordered to be returned for amendment on account of certain defects; but was never taken back and in consequence never amended.

(2.) The two defects which the District Judge regards as serious, and on account of which he has held the application to be inoperative to save limitation are : (1) The omission to file an encumbrance certificate with the application. (2) The omission to specify the assessment on the land sought to be brought to sale. The leading case on the point is Ramanadan v. Periatambi (1883) I.L.R. 6 M. 250 in which the learned Judges say : "We are of opinion that the application of 1879, although not complying in every particular with the requirements of Section 235 of the Code of Civil Procedure (XIV of 1882), was substantially an application made in accordance with law, and that, although it was returned for amendment and nothing further was done upon it, the application gives a fresh starting point from the date of its presentation." This principle has been followed in numerous subsequent cases in which the importance of various defects has been considered. It has usually been decided that, they were insufficient to justify the application being treated as one not in accordance with law.

(3.) It was apparently argued before the District Judge that no defect or omission was material as long as there was an application of some kind for the execution of the decree in the manner provided by law, This contention was rightly rejected by him and he very reasonably remarks that a line must be drawn between applications which, though defective, are to be considered as in accordance with law, and applications which are so defective as not to be treated as applications at all for this purpose. This no doubt is so; and it is by no means easy to say where the line s*hould fall. But I feel little hesitation in saying that the defects in the present case could not be considered G as disabling, without running counter to reported decisions of this Court. The application was no informal petition but one drawn up in the form prescribed by the rules. It is not contended that the failure to represent it after amendment makes any difference, apart from the nature of the defects. The failure to state the assessment on the land can hardly be treated as more serious than the failure to specify a previous execution application, which has been held to be a mere formal defect, so long as it did not prejudice the judgment-debtor or mislead the Court. Vide Rama v. Varada (1892) I.L.R. 16 M. 142, which is a case on much the same lines as the present one. The obligation to file an encumbrance certificate is imposed by Rule 148 of the Civil Rules of Practice just as the obligation to file a copy of a decree is by Rule 164 and the observations of the Court in Pachiappa Achari v. Poojali Seenan (1905) I.L.R. 28 M. 557, are as applicable to the one case as to the other.