This civil miscellaneous second appeal arises out of proceedings taken in execution of a final mortgage decree. The petitioner is the son of the judgment-debtor. The final decree was passed on 25th July 1932. The decree-holder died after the final decree and his son, one Lingasubbayya, appears to have filed three execution petitions, the first on 21st January 1935, the second on 20th January 1938 and the third on 31st January 1941. The third execution application was dismissed on 21st February 1941. Lingasubbayya's sons filed an execution petition on 29th January 1944 which was also dismissed on 24th February 1944. They again filed the present execution petition, E.P No. 366 of 1944, on 24th July 1944, just a day previous to the expiry of the 12 years period from the date of the final decree.

The present execution petition was signed and verified by Lingasubbayya's sons and was also counter-signed by one Mr. C.S Narasimhachariar as Vakil for the decree-holder, Veerasubbayya. Mr. Narasimhachariar had no vakalat for Lingasubbayya's sons, the legal representatives of the decree-holder. Mr. Narasimhachariar's son, Mr. Srinivasachariar, however, who was working with his father had a vakalat for the respondents who are the legal representatives of the decree-holder. Objection was taken to the validity of the said execution petition on the ground that the execution petition was presented by a Counsel who had no vakalat for the respondents and that, therefore, it was a nullity. It may be mentioned that subsequent to the filing of the petition, which was on 24th July 1944 a vakalat was filed by Mr. Narasimhachariar and also by another Counsel but that was done on 6th July 1946 after the expiry of 12 years from the date of the final decree. It was contended that the subsequent filing of the vakalat, in any event, could not cure the defect, if any, in the presentation of the execution petition. Not content with the objection raised to the issue of the execution, the appellant filed E.A No. 139 of 1946 in E.P No. 366 of 1944 under S. 47 Civil Procedure Code praying that no execution be issued for realising the amount in pursuance of the final decree in O.S No. 534 of 1930. This application was heard along with the execution petition and both the Courts have held that the presentation of the execution petition without a vakalat was only an irregularity and not an illegality which invalidated the proceedings and that irregularity having been subsequently set right by the filing of a vakalat, the defect, in any event, had been set right, and that the execution petition must, therefore, be deemed to have been presented properly on the date when it was presented, and allowed execution to issue.

The decision in Sri Sri Sri Nandamani Ananga Bhima Deo v. Sri Madam Mohun Deo(1) is relied upon by the Counsel for the appellant in support of his contention that E. P. No. 366 of 1944 not having been presented by a Counsel duly authorised in writing on behalf of the respondents could not be said to be a valid presentation in as much as the act of the Counsel in presenting the execution petition was a mere nullity, and that therefore, no order could be passed on the execution petition which has not been validly presented. The provision in the Civil Procedure Code, which governs the filing of execution petitions is O. 21, R. 11 which lays down that in respect of a decree for payment of money an oral application of the decree-holder at the time of the passing of the decree may be made and if it is otherwise under Cl. 2 it is provided that every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and shall contain the particulars mentioned in the said sub-clause. The rule is, however, silent as to by whom the filing or presentation of such a written application should be. With reference to plaints. O. 4, R. 1 Civil Procedure Code states that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in its behalf. Though in respect of plaints there is provision for presentation to the Court or to the officer, even that is absent with reference to execution applications as provided for in O. 21, R. 11. With reference to suits and appeals by paupers, O. 33, R. 3 and O. 44, R. 1 mention that they have to be presented by the party in person. No such specific manner of presentation is indicated with reference to either plaints or execution petitions. In respect of an execution petition even an oral application can be made, but if it is to be in writing, it must be signed and verified by the applicant and should contain particulars enumerated in clause 2 of O. 21, R. 11.

In the present case a written execution petition was filed and it cannot be disputed, though it was contested at a late stage that there was nothing to show that at the time of the presentation the party was not present, thereby suggesting that the presentation could have been made by the party, in which case the question of invalidity of presentation would not arise, that the presentation was by Mr. Narasimhachariar who had a vakalat for the decree-holder alone but not a vakalat for the present respondents. The question is whether such presentation is invalid as rendering the execution petition so presented as having no legal effect. O. 3, R. 1 states:

“Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.”

and R. 4 relates to appointments of pleaders and provides that every appointment should be in writing signed by the party or his agent and that such appointment shall be filed in Court. It is therefore contended that Mr. Narasimhachariar was not entitled to act without a written authority, that is, a vakalat, and he was therefore not a person who can be said to represent the party in respect of the act of presentation of the execution petition within the meaning of O. 3, R. 1. The position therefore is that the execution petition was presented by a person who was not duly authorised in writing as required under the procedure laid down and it is for consideration whether such a presentation has invalidated the execution petition and the Court has become incompetent to pass any orders on such presentation.

The Code does not lay down any specific provision with reference to the presentation of an execution petition as already pointed out. But it must be assumed that the presentation of the execution petition or any other proceeding in Court must be by the party, in the case of a plaint by the plaintiff or in other cases by the petitioner, and in his absence by a person who is authorised to represent him. It cannot be denied that Mr. Narasimhachariar had the authority from the respondents to act for them, though such authority was not reduced to writing in the shape of a vakalat at the time of the filing of the petition. The provision of O. 3, R. 1 has been introduced in the interests of a plaintiff or petitioner to avoid the practising of any fraud by third parties by seeking to represent persons, though not authorised to do so. Once it is shown, as in this case, that Mr. Narasimhachariar was questioned to represent the respondents which could be further supported by the filing of the vakalat by Mr. Narasimhachariar for the respondents subsequently, and due to a bona fide mistake that the vakalat was not filed in the first instance which was complied with subsequently before final orders were passed on the execution petition, it cannot be said that the presentation was not proper or illegal going to the root of the validity of the petition. A similar question arose before the Allahabad High Court recently and under almost identical circumstances in the Full Bench case in Kanayalal v. Panchayat Akhera where it was held that an application for execution which, in all other respects, is in order and which has been admitted and registered by the execution Court is not to be considered to have not been “made in accordance with law” merely because it was handed over to the officer of the Court by a pleader who had not got a vakalatnama from the decree-holder and that the improper presentation of such an application was, however, not an illegality but a mere irregularity which did not make the application not “made in accordance with law”. I am in entire agreement with this conclusion of the Full Bench of, the Allahabad High Court. With reference to a similar question which arose, where it was a case of presentation of a plaint and not an execution application, a Special Bench of the Allahabad High Court took a similar view in the case reported in Ali Mohamedkhan v. Ishak Ali(2). Sulaiman Ag. C.J who gave the opinion of the Bench observes as follows at page 511:

“If the Legislature had intended that the absence of the presentation of the plaint by the plaintiff or by some person duly authorised by him would altogether oust the jurisdiction of the Court the language used would have been definite and specific Instead of that, S. 26 merely provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed, without saying in express terms that the presentation should be by the plaintiff or his duly authorised agent. As there is no specific rule either requiring or expressly authorising the plaintiff to present the plaint it is doubtful whether O. 3, Rule 1 of the Code would apply to such a case. If it does not apply, the presentation by a person orally authorised to do so would be valid. But even if, it does, we are clearly of opinion that the omission to comply with this provision would be a mere irregularity and not an absence of jurisdiction. The Court receiving a plaint which has not been properly presented would have jurisdiction to dismiss it and pass orders on it. It would not be acting without jurisdiction if it did so. We do not mean to imply that a plaintiff has the right to get his plaint presented by a man in the street. If the person presenting it was not properly authorised the presentation would be irregular. The Court would then have the discretion to allow the irregularity to be cured or not. If the plaintiff has acted in good faith and without gross negligence, and it is fair and just to allow the defect to be cured, the Court would undoubtedly do so. It is not absolutely helpless in the matter.”

There is also a Bench decision of the Bombay High Court in Hirabai v. Bhagirath Ramachandra, which takes a similar view as that of the Allahabad High Court. It was a case of a plaint and it was held that the failure to comply with the provisions relating to the presentation of plaint is a mere irregularity so that if the person presenting it is not properly authorised to do so, the presentation is irregular but does not oust the jurisdiction of the Court and that the Court would have jurisdiction in such a case to permit the irregularity to be cured and that the suit must be deemed to have been filed when it was first instituted.

I am in general agreement with the observations of Sulaiman Ag. C.J in Wali Mohamed v. Ishak Ali, excepting that it cannot be said that O. 3, R. 1 could not be applicable to the case in question. But, however, I am of opinion that the omission to comply with the provisions is a mere irregularity and does not amount to absence of jurisdiction. There is no contravention of any specific provision of law relating to the filing of the execution petitions as there is nothing in O. 21, R. 11(2) which requires the petition to be presented by a particular person or in a particular manner. In the absence of such a provision a presentation in the manner as has been done in this case could only be said to be a mere irregularity and would not amount to an absence of jurisdiction or to be in express contravention of law. In this case however, both the Courts have very rightly held that there has been a bona fide mistake which was subsequently rectified by the presentation of a vakalat. The Court finding that there has been a bona fide mistake received the vakalat and registered the execution petition. What was a formal defect in procedure was subsequently rectified, and having done so there could be no reason why it should not be held that the execution petition was properly presented on the date when it was presented. Once it is held that the presentation in the circumstances was a formal defect and an irregularity and not an illegality, the fact of the filing of the vakalat on 6th July 1946 after the period of 12 years provided under S. 48 Civil Procedure Code would not affect the position since the filing of the execution petition having been made within the period of limitation subject to any formal defect had been rectified subsequently, the petition must be held to have been in time. In support of this position reference may be made to the decision of the Privy Council in Mohini Mohandas v. Dungsi Budan Sahadas(3). In that case three suits were filed by one of three joint creditors, the others being named as co-plaintiffs with him in the plaints but the plaint was signed by him alone and not by the other two joint creditors and there was nothing to show that the other two creditors repudiated the suits even though it purported to have been on behalf of the three creditors but signed only by one of them. The question was whether the other plaintiffs must be considered to have been plaintiffs, in the circumstances, from the beginning or from the date when certain orders intended to cure the defects were passed. Their, Lordships held that the other two plaintiffs became parties to the suits from the time the plaints were filed and that the suits were not barred by lapse of time though by the time the defect was cured limitation had set in so far as the other two plaintiffs were concerned. This appears to me to be further authority for the position that the mere fact that the absence of signatures and verification of some of the plaintiffs to a plaint where they had a common interest did not affect the jurisdiction of the Court and did not render the entire proceeding as illegal, and that they are only defects in procedure which could be rectified subsequently, and did not render the proceeding initially invalid.

The Bench decision of this Court in Sri Sri Sri Nandamani Ananga Bhitna Deo v. Sri Madan Mohandeo, is based on different set of facts. In that case the point that arose for decision was whether the decree-holder applied in accordance with law for execution when he filed the execution petition in 1923. The previous execution petition was in 1920 and the subsequent execution petition was in 1925. The question that arose was whether the 1923 petition was made in accordance with law to the proper Court for execution within the meaning of Art. 179 Limitation Act corresponding to the present Art. 182(5) Indian Limitation Act. The 1923 execution petition was presented by a pleader who had no vakalat, and therefore, if it was held that that petition was a nullity, the 1925 petition should be barred. But the 1923 execution petition was withdrawn and dismissed. Burn J. who delivered the judgment of the Bench after referring to O. 3, R. 4 referred to the contentions of the respondent as being that the act of the pleader in presenting the execution petition was a mere nullity and that it was not a question of a defect in the pleader's authority, or a question of an irregularity, or even of an illegality in anything that he did but it was a question of want of capacity to act and agreed with the said contentions of the respondent. With reference to the contention of the appellant in that case, that such execution petitions, having been admitted by the Court and action having been taken by the issue of notices to judgment-debtors and adjourning them for several days, could not, after all that has been done, be treated as mere waste paper, or as if they had not been presented at all, the learned Judge observed that that argument would have great force if anything had really been done upon those execution petitions but the end of them was that they were withdrawn and were accordingly dismissed without execution having really taken place. In that case no vakalat was filed before it was withdrawn and dismissed and the Court was, therefore, not called upon to consider whether the subsequent filing of the vakalat could have rectified the defect if any in the presentation, and the execution petition, having been withdrawn and dismissed and taken off the file without a vakalat and the petition having admittedly been presented by a person who had no authority and finally the same having been withdrawn and dismissed, it could not therefore be said that that execution petition could save the bar of limitation as having been filed in accordance with law under the present Art. 182(5), of the Limitation Act. When the 1925 petition was considered, the 1923 petition had become closed and disposed of as dismissed since it was withdrawn, it being indisputably a petition not properly presented and any impropriety or irregularity in the presentation not having been rectified and in 1925 such defect was impossible of being cured or rectified. I am, therefore, of opinion that the decision proceeded on a different set of facts though the learned Judges observed that the presentation of the execution petition was a mere nullity. From the other observations of the learned Judges and the fact that no vakalat was subsequently filed to rectify it, it cannot be stated that the learned Judges would not have come to a different conclusion if, during the pendency of the 1923 petition, a vakalat was filed and the Court accepted it and it is doubtful whether the learned Judges would still have held that the presentation was a nullity. In that case there was no scope for rectifying, as the petition was closed and the question whether rectification of what ought to have been did not arise. I therefore feel that the decision would not apply to the present case.

I therefore hold that the presentation of the execution petition is valid and execution has rightly been issued by the lower Court. The appeal therefore fails and is dismissed with costs. No leave.

N.R.R