MUDIGONDA VEERABHADRAIAH Vs. LAVU SESHIAH

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of the execution proceedings of the decree in O.S. No. 583 of 1933 on the file of the District Munsiff's Court, Bapatla. The execution petition No. nil in O.S. No. 583 of 1933 was dismissed on the ground that it was barred by limitation. The point for determination in this civil miscellaneous second appeal is whether the order dismissing the execution petition on the ground of limitation is correct.

(2.) The decree in question was passed on 15 February, 1934. On 24 February, 1934, E.P. No. 190 of 1934 was filed and it was struck off on 10 April, 1934. The next execution petition No. 228 of 1935 was filed on 17 January, 1935, for rateables and on 15th November, 1935 rateables were allowed and part satisfaction of the decree was entered. The third execution petition was filed on 26 January, 1938, in which the prayer was that the second defendant should be added as the legal representative of the deceased first defendant in the suit, that notice might be issued under Order 21, Rule 22 of the Civil Procedure Code and moveable property attached under Order 21, Rule 43. There was a mistake in that execution petition regarding the amount realised by way of rateables under the prior execution petition. The office returned the execution petition for necessary amendments and also to comply with certain requisitions. On the 14 February, 1938, there was a return by the Court fixing seven days time to comply with the requirements of the office. The petition was re- presented on the 1 March, 1938, that is, beyond the time allowed for re-presenting it. No application to excuse the delay in re-presentation however was filed. That execution petition was dismissed on 5 March, 1938, by the order ?Not amended. Dismissed." The fourth execution petition which was also unnumbered was filed on 28 February, 1941, with a prayer similar to the one contained in the prior execution petition. That execution petition was returned from time to time for producing the copy of an order in insolvency. On 13 March, 1941 the endorsement on the petition was Copy of insolvency order to be filed. Notice 7 days. On the 17 March, 1941, it was re-presented within the time with the endorsement, I pray that time for ten days may be granted for filing the copy of the insolvency order. It was again returned by the office with the endorsement ?Petition for the relief sought for to be filed. Notice three days." Finally it was re-presented on 26th March, 1941, with the endorsement, I applied for a copy of the insolvency petition. Therefore I pray that time for one week may be granted.

(3.) The petition was rejected on 29 March, 1941, with the endorsement ?Petition called for not filed. Rejected." The present execution petition was filed on the 12 March, 1943, i.e. within three years from the date of the order on the last execution petition. There is no dispute that the present execution petition would be in time if the orders on the two unnumbered petitions are final orders. The short question therefore is whether the order dated 5 March, 1938, on the execution petition of 1938, and the order dated the 29 March, 1941, on the unnumbered execution petition of 1941 are "final orders" within the meaning of Art. 182, clause 5 of the Indian Limitation Act. The Courts below following the decision in Khadir Sahib V/s. Viswanatha Iyer , held that as there were no petitions to excuse the delay and in fact the delay was not excused the two execution petitions had no legal existence and therefore the orders could not be treated as final orders. This decision in Khadir Sahib v. Viswanatha Iyer , was recently considered in a case which is somewhat analogous to the facts of the present case by Gentle, C.J., and myself in A.A.O. No. 651 of 1945, Muthu Venkalasubba Reddiar V/s. Thangavel Chetti (Since reported) . In that case we pointed out after examining the facts in Khadir Sahib V/s. Viswanatha Iyer : In that case there was an order refusing to excuse the delay occasioned in the 1933 petition, but such order was passed in an application made in the 1937 petition and not in the 1933 petition; upon that application being refused it was then that the 1933 petition was rejected. The judgment in Syed Gulam Khadir Sahib case , was with respect to the particular facts therein arising, which are not the same as in the present instance. With reference to a contention similar to the one raised in the present case in the Courts below and before me we observed that, Mr. Panchapagesa Sastry's argument is a challenge to the correctness and validity of the order of dismissal, his contention being that, while it purports to be a final order, since the execution petition was not re-presented within the period limited, it should follow that thereafter the petition had not legal existence and in respect of it an order of dismissal could not properly be made and therefore the petition could not have been " dismissed." That argument, in effect, is similar to an endeavour to go behind a decree of Court and to contend that the decree is invalid although it has never been set aside. Even assuming that the order of dismissal was made wrongly, nevertheless, it was an order and it remains alive and effective unless and until it is set aside by means of a proper procedure which has not taken place in the present instance.