S A R CHINNAN CHETTIAR Vs. ESTATE MANAGER

JUDGEMENT

(1.) This appeal arises out of an application to execute a decree for arrears of rent obtained by the Zamindar of Sivaganga represented by the Estate Manager, the respondent herein, against one Kannappa Chettiar deceased. The decree was passed on 31 July, 1929, and though Kannappa died on 28 November of the same year successive applications, each within 3 years of the preceding one, were filed subsequently in the Revenue Court for execution of the decree against the said judgment-debtor as if he were alive on those dates but were allowed to be dismissed for non-prosecution. The present application (E.P. No. 5784 of 1944) which has given rise to this appeal was filed on 10 July, 1941, against the same person but it was returned by the Special Deputy Collector with the remark that as the judgment-debtor was dead his legal representatives should be added. The respondent decree-holder accordingly applied on 24 April, 1943, to bring on record the appellant and another as the legal representatives of Kannappa and that application was ordered on 27 October, 1943. The appellant then objected to the execution of the decree on the ground that it was barred by limitation but the Courts below overruled the objection and ordered execution to proceed. From that order the present appeal has been preferred to this Court.

(2.) Mr. Ramaswami Iyer for the appellant conceded, in view of the decision of this Court in Samia Pillai V/s. Chockalinga Chettiar (1893) 4 M.L.J. 8 : I.L.R. 17 Mad. 76 and other cases, that an application for execution presented against a deceased judgment-debtor owing to a bona fide mistake, though it could not be acted upon by the executing creditor, was an effective step-in-aid for the purpose of saving limitation. But he urged that the previous applications for execution were not made bona fide inasmuch as the respondent knew, or must be taken to have known, that Kannappa was dead, the officers of the respondent's estate having taken various proceedings in the Revenue Courts for collection of rent wherein Kannappa's death was referred to. This fact was not disputed but it was explained that the execution petitions were filed by a different department of the Estate establishment and that the judgment-debtor's death was lost sight of in the routine of its business. The Courts below accepted this explanation and found that the Estate officials were acting only negligently but not dishonestly in filing the earlier execution applications without impleading the legal representatives of the deceased judgment-debtor. This finding was not challenged before us be (1893) 4 M.L.J. 8 : I.L.R. 17 Mad. 76 it was contended that the principle of Samia Pillai v. Chockalinga Chettiar (1893) 4 M.L.J. 8 : I.L.R. 17 Mad. 76, could not be extended to cases of mistake due to negligence as " bona fide " implies due care and attention. We are unable to accede to this contention. Though there is not room here for the application of the definition of "good faith" in Section (20), General Clauses Act (X of 1897) under which, a thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not. It shows that ordinarily the expression does not import due care and attention-The decision in Samia Pillai V/s. Chockalinga Chettiar (1893) 4 M.L.J. 8 : I.L.R. 17 Mad. 76 itself shows that a mistake due to negligence but honestly made is a bona fide mistake within the meaning of the rule laid down by it, for the mistake of entering in the execution application the name of the deceased judgment-debtor as the party against whom execution was sought in that case was made by the vakil's gumastah who could have readily ascertained from the decree-holder the true state of facts before filing the application in Court. Yet the learned Judges held that " it was no doubt a bona fide mistake."

(3.) It was next urged that the present execution application was barred by Section 48 of the Civil Procedure Code. The argument was put thus : the application having been filed against a deceased judgment-debtor, was a nullity even as a plaint filed against a deceased person is a nullity (see Veerappa Chetti v. Tindal Ponnan (1907) 17 M.L.J. 551 : I.L.R. 31 Mad. It became an effective application only when the legal representatives of Kannappa including the appellant were brought on record, and as this was done on the 27 October, 1943, more than twelve years after the date of the decree, no order for execution should be passed on the application. This point, again, is concluded against the appellant by the decision in Samia Pillai V/s. Chockalinga Chettiar (1893) 4 M.L.J. 8 : I.L.R. 17 Mad. 76. In that case the naming of a deceased judgment-debtor as the person against whom execution is sought was regarded as no more than a mistake in giving the particulars required under Section 235 of the Old Code corresponding to Order 21, Rule 11(2) of the present Code. The learned Judges observed: Where there has been in fact an application for execution made by the party entitled to make it the mere fact of a mistake having been made in giving the particulars required by Section 235 of the Civil P. C. cannot, we think, have the effect of rendering the application, a nullity. If so, the defect could be remedied under Order 21, Rule 17(1) and when so remedied by amendment, it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented" (Sub-rule 2).