T A JANAKUMARA NAINAR Vs. PERIASWAMY GOUNDAN

JUDGEMENT

(1.) E.P. No. 40 of 1945, which the appellant decree-holder filed, was the last he could file within the period of 12 years the law allowed him. The application was filed on the 24th September 1945. The appellant was directed to furnish the sale papers. Time was extended periodically, and on the 31 October, 1945, he applied for a further three weeks. The order of the Court ran, Time extended finally 2nd November, 1945. The sale papers were not filed on the 2nd November, 1945, and on that day the learned District Munsiff dismissed the application for execution. That order was confirmed on appeal to the learned District Judge of North Arcot.

(2.) The main contention in second appeal was not one that was presented for the consideration of either the trial Court or the lower appellate Court. The learned advocate for the appellant contended, that, as the learned District Munsiff had granted to the decree-holder on his application dated the 31 October, 1945, time till the 2nd November, 1945, to file the sale papers, independently of any question, whether the appellant could comply with the orders of the Court for the production of the sale papers, or even whether he intended to comply with those orders, the order of dismissal passed on the and November, 1945, was one without jurisdiction. He relied on Perumal Nadan V/s. Swananji Nadachi (1915) I.L.R. 39 Mad. 583, Muthu Chettiar V/s. Narayanan Chettiar (1927) 55 M.L.J. 274 : I.L.R. 51 Mad. 672, and Chinniah Chettiar V/s. T. Kumaraswamiah (1933) M.W.N. 88. In Muthu Chettiar's case (1927) 55 M.L.J. 274 : I.L.R. 51 Mad. 672, on the facts it was clear that the application was dismissed in the forenoon when there were still many hours of the usual Court hours left on the day fixed for compliance with the orders of the Court. The facts have not been set out in full in Chinniah Chettiar's case (1933) M.W.N. 88. In Perumal Nadan's case (1915) I.L.R. 39 Mad. 583, the earliest of these, Oldfield and Seshagiri Aiyar, JJ., after pointing out that time for performance was granted till the 3 December, 1912, observed, The learned Subordinate Judge therefore had no jurisdiction to pass his order of dismissal before 4 December, 1912.

(3.) That was obviously to give effect to the principle, reiterated in these decisions that, when the Court fixes a date for the fulfilment of a certain condition, the person on whom that obligation is imposed will have the whole of that day for complying with the orders. Whether the whole of the " day " should be limited to the normal Court hours of the day or to the whole of the calendar day does not appear to have been specifically raised or decided in any of these cases; but I do not think that question need be discussed now in view of the implied decision in Perumal JVadan V/s. Swananji Nadachi (1915) I.L.R. 39 Mad. 583 Oldfield, J. was definitely of opinion that at no time on the last of the dates fixed for compliance with an order of the Court could that Court have any jurisdiction to dismiss the application for default.