KUPPUSWAMI NAINAR Vs. RANGASWAMI GOUNDAN

JUDGEMENT

(1.) THE point raised in this appeal is governed by the decision of a Bench of this Court reported in Khadir Sahib V/s. Viswanatha Iyer which was approved by the Full Bench in Seshagiri Rao V/s. Subbarami Reddi . THE decree-holder is the appellant. He obtained a final decree in a mortgage suit on 28 August, 1935. THE first execution petition was filed on 29 August, 1938, which was rejected on 14th October, 1938. THE present execution application was filed on 23 January, 1943, more than three years from the date of the final order on the prior execution petition. In order to save limitation for this execution petition he relies upon an unnumbered execution application filed by him on 10 October, 1941, and returned on 13 October, 1941, for filing sale papers, filling up blanks and paying batta. Two weeks time was granted for complying with these requisitions and the petition was re-presented a day after the expiry of the two weeks on 28th October, 1941. THE petition was again returned on 31 October, 1941, and was not re-presented to Court till 23 January, 1943, when that unnumbered execution petition was also filed along with the present execution petition with an application to excuse the delay in re-presenting the execution petition. It is this unnumbered execution petition that the decree-holder relies upon as helping in saving limitation. THE Courts below have held that the delay should not be excused and dismissed the present execution petition and also rejected the unnumbered execution petition. This is exactly what happened in Khadir Sahib v. Viswanatha Iyer . It is as if the unnumbered petition was not in existence in the eye of the law and therefore the order refusing to excuse the delay is of no legal consequence. THEre is no final order between the 14 October, 1938, and the filing of the present execution petition on 23 January, 1943. THEre is no doubt that on the principle of the decision in Natesa V/s. Ganapathia I.L.R. (1940) Mad. 949 and the decision of the Privy Council in Govind Prasad V/s. Pavankumar (1943) 2 M.L.J. 121 : L.R. 70 I.A. 83 : I.L.R. (1943) Nag. 669 (P.C.) an unnumbered execution application is an application presented in accordance with law as the requirements insisted upon are not any statutory obligations imposed by the Code but by the Civil Rules of Practice. THEre is therefore no doubt that the application was one in accordance with law but unfortunately as it is not re-presented for a long time it did not exist in the eye of law and the subsequent order rejecting it is of no consequence. THE decisions of Somayya, J., in Gopalaswami Mudaliar v. Executive Officer, Tiruvarur Devasthanam and Venkatarathnam V/s. Romakottayya are distinguishable because in those cases there is not much delay in re- presenting the unnumbered application. In the decision of King, J., in Ramachandra Naidu V/s. Muthu Chettiar and the decision of Wadsworth, J., in Natarajan Pillai V/s. Narayanaswami Iyer , the application was not taken return of but was within the precincts of the Court and was finally dismissed by the Court. In those cases there was clearly a final order on the unnumbered execution petitions which gave fresh start to limitation. THE Civil Miscellaneous Second Appeal therefore fails and is dismissed with costs. No leave.