P C MUTHU CHETTIAR Vs. NARAYANAN CHETTIAR

JUDGEMENT

(1.) For a proper understanding of the various points raised and discussed in this Civil Revision Petition it is necessary that a few material facts should be set out. The petitioner before us obtained a decree in O.S. No. 14 of 1908 on the file of the Subordinate Judge's Court of Madura East. It was a decree for money and dated 25 February, 1908. After various execution petitions with which we are not at present concerned E.P. No. 36 of 1920 was filed on the 23 February, 1920, that is to say, a few days before the expiry of 12 years, the time limited for execution of decrees under the Procedure Code. On the 27 September, 1921 final orders were passed on certain claims made in respect of attachment issued in execution and on that date a further order was made in the following words : "Sale papers to be filed by 11th October, 1921." Somehow or other, on the forenoon of 11 October, 1921 this execution petition appears to have been called and, in the absence of the execution creditor and his vakil, an order was made by the Subordinate Judge in the following terms : "not filed, dismissed." On the same day an application to restore this petition to file was made on behalf of the execution petitioner supported by an affidavit of the vakil's clerk and an order was made by the Subordinate Judge restoring the petition to the file, setting aside the order of dismissal but without any notice of such application to the opposite side.

(2.) On the same day, 11 October, 1921, another application E.A. No. 396 of 1921 was made by the execution petitioner for the purpose of allowing him to carry out certain amendments in the execution petition. Notice was issued in respect of this execution application for amendment of the petition, and when it came on for hearing objection was taken on behalf of the judgment-debtor to the order previously passed restoring the execution petition once dismissed. The learned Subordinate Judge gave effect to this objection and held that the order of restoration was wrongly made, and he thereupon not only dismissed the execution application for amendment but also made an order that the execution petition was dismissed. Against this A.S. No. 153 of 1922 was preferred to the District Court. The learned District Judge reversed the order of the learned Subordinate Judge holding that the order for restoration was properly made and that, therefore, the application for amendment should be remanded to the lower Court for disposal in the ordinary course. He also made a further order setting aside the order of dismissal of the execution petition made by the Subordinate Judge.

(3.) Against this the judgment-debtor preferred Appeal against Appellate Order 63 of 1924 to this Court. The judgment of this Court in that case is reported in Narayanan Chettiar V/s. Muthu Chettiar (1926) I.L.R. 50 M. 67 : 51 M.L.J. 219. This Court came to the conclusion that the application for restoration was incompetent either under Order 9 of the Civil Procedure Code or under the review section or even under Section 151 of the Procedure Code. In the result, therefore, this Court reversed the order of remand made by the District Court and confirmed the order made on the application for amendment by the learned Subordinate Judge. The Civil Revision Petition before us was presented on the 6 March, 1926 for the purpose of revising the order of dismissal of the execution petition made on 11 October, 1921.