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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. B.V Ramanarasu for Appts.
  • Mr. K. Krishnamurthi for Respts.
Judges
  • Leach, C.J
  • Lakshmana Rao
  • Kuppuswami Ayyar, JJ.
Acts
  • Art. 182(5) of the Limitation Act. R. 14
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. B.V Ramanarasu for Appts.
  • Mr. K. Krishnamurthi for Respts.
Judges
  • Leach, C.J
  • Lakshmana Rao
  • Kuppuswami Ayyar, JJ.
Acts
  • Art. 182(5) of the Limitation Act. R. 14
See more information ...
Smart Summary

Summary of the Court's Opinion (Delivered by The Chief Justice)

Factual and Procedural Background

This summary is drawn exclusively from the opinion text provided.

On 28 October 1929 Salvapantulu Subba Rao obtained a money decree for Rs. 2,000 with interest in the Subordinate Judge's Court at Nellore against Rebala Venkatareddi (first defendant), Rebala Subbarami Reddi (second defendant) and others. On 25 October 1932 the decree-holder applied for execution against the second defendant and the legal representatives of the (then deceased) first defendant; those legal representatives were made respondents 3 to 5. On 14 January 1933 the decree was transferred to the District Court for execution.

On 4 May 1933 the decree-holder filed an application in the District Court for execution by attachment and sale of properties of the second defendant and the legal representatives of the first defendant. The petition complied with the requirements of Order 21, Rules 11 and 13 of the Code of Civil Procedure, but the District Court returned it on two grounds: (1) it was not accompanied by a vakalatnamah; and (2) the Court required extracts from the patta register under Rule 14. The pleader re-presented the petition after pointing out that a vakalat had been filed earlier in the Subordinate Court; the petition was accepted but was not registered or numbered.

The District Judge repeatedly required filing of the patta extracts and granted further time on three occasions, the last date being 14 September 1933. As the patta extracts were not filed by that date, the District Judge rejected the application with the brief endorsement: “Patta extracts not filed. Further time not applied for. Rejected.” The pivotal question was whether this rejection constituted a “final order” within the meaning of Article 182(5) of the Limitation Act.

Subsequent procedural history: on 26 March 1936 the decree-holder filed a fresh execution application; on 4 July 1936 the District Judge ordered the arrest of the second defendant, but because the decree-holder failed to pay the required batta the application was dismissed on 25 July 1936. No further steps were taken until 19 July 1939, when a third application was filed and later dismissed on 8 December 1939 for non-payment of batta.

On 20 February 1941 E.A. No. 40 of 1941 was filed by the legal representatives of the decree-holder (the decree-holder being then deceased), seeking recognition of those representatives and transfer of the decree to the Subordinate Court for execution. On 8 March 1941 the District Judge granted the order as prayed in E.A. No. 40 of 1941. The legal representatives filed an execution application in the Subordinate Court on 15 July 1941; the judgment-debtors objected that that application was out of time.

The Subordinate Judge held that the 14 September 1933 order was not a final order and, relying on Khadir Sahib v. Viswanathayyar, dismissed the execution application insofar as it concerned the legal representatives of the first defendant; he held, however, that the application was not time-barred as regards the second defendant because the second defendant had not appealed from the 4 July 1936 order and res judicata applied. A.A.O No. 803 of 1943 was filed by the legal representatives of the decree-holder; A.A.O No. 196 of 1944 was filed by the second defendant.

Legal Issues Presented

  1. Whether the District Judge's endorsement rejecting the 4 May 1933 execution application on 14 September 1933 ("Patta extracts not filed. Further time not applied for. Rejected.") amounted to a "final order" within the meaning of Article 182(5) of the Limitation Act (i.e., whether that order starts a fresh period of limitation).
  2. Whether the question of res judicata raised in A.A.O No. 196 of 1944 should succeed; the parties acknowledged that a decision in favour of the appellants on the limitation point in A.A.O No. 803 would result in dismissal of A.A.O No. 196 of 1944.

Arguments of the Parties

Respondents' Arguments

  • The learned Advocate for the respondents (who also appears for the appellant in A.A.O No. 196 of 1944) sought to distinguish Govind Prasad v. Pawankumar on the ground that, in that case, the application had been registered and assigned a number, whereas in the present case the original application rejected on 14 September 1933 was not registered and received no number; reliance was placed on observations of Varadachariar, J., in Sattappa Chettiar v. Chockalinga Chettiar.
  • The judgment-debtors objected in the Subordinate Court that the execution application filed on 15 July 1941 was out of time; the Subordinate Judge accepted the objection as regards the legal representatives, relying on Khadir Sahib v. Viswanathayyar, but not as regards the second defendant because of the 4 July 1936 arrest order and res judicata.

Other Party Contentions

The opinion does not present a detailed, separately labelled list of the appellants' arguments beyond the chronological and procedural facts and the legal contentions addressed by the Court. The Court's reasoning discusses and applies precedents (particularly Govind Prasad v. Pawankumar) to the facts set out above.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Govind Prasad v. Pawankumar The principle that where an execution application complied with Order 21, Rules 11 and 13, failure to comply with a subsequent direction under Rule 14 (which is permissive) does not render the original application not "in accordance with law" for the purposes of Article 182(5); an order dismissing the application for default in complying with a direction under R.14 is a final order within Article 182(5) and starts a fresh period of limitation. The Court applied Govind Prasad to hold that the 4 May 1933 application (which complied with Rr.11 and 13) was in accordance with law and that the District Judge's rejection on 14 September 1933 amounted to a final order under Art. 182(5), thereby starting a fresh period of limitation.
Khadir Sahib v. Viswanathayyar Addressed the legal consequences of an unnumbered execution petition which had been returned for compliance and not re-presented; held the unnumbered petition had no legal existence so that orders connected with it could not be treated as final under Article 182(5). The Court distinguished Khadir Sahib: it observed that in that case the petition had no legal existence because it was not re-presented within the time allowed; by contrast, in the present case the petition was in accordance with law, before the Court and a final order dismissing it was endorsed. The Court held that the Subordinate Judge had misread Khadir Sahib.
Sattappa Chettiar v. Chockalinga Chettiar Involved rejection of an application for non-compliance with an order under R.17 of O.21; Varadachariar, J., made observations about the register entry and numbering required by Sub‑R. (4) of R.17. The Court held the facts of Sattappa Chettiar were different and that Varadachariar, J.'s observations should not be read as meaning that the absence of numbering renders an application not "in accordance with law." The Court rejected the respondents' attempt to rely on that passage as supporting the non-numbering point.
Marimuthu Pillai v. Abdul Ganni Rowther Authority (one of several) to the effect that non-numbering of a petition is not fatal if the petition was before the Judge, judicially considered and judicially decided. Relied upon by the Court to support the proposition that the absence of a number on the petition dismissed on 14 September 1933 was of no consequence.
Mahalakshmi Ammal v. Subramania Chettiar One of the decisions cited for the view that non-numbering does not render a petition legally non-existent where it was judicially considered. Relied upon to buttress the Court's conclusion that non-numbering here was immaterial.
C.R. Parankusa Naidu v. Ayyanna Naidu Another case supporting that absence of numbering is not decisive absent lack of judicial consideration. Applied as part of the chain of authority rejecting the non-numbering argument.
Ramachandra Naidu v. Muthu Chettiar Authority cited for the same legal proposition about non-numbering. Used to support the Court's view that the petition's non-numbering did not invalidate the final order.
Ponnuswami Voikaran v. Gopalaswami Aiyer Decision (not reported) cited among authorities that non-numbering is not fatal where the petition was before the Judge and judicially decided. Referred to by the Court as part of consistent authority to reject the non-numbering contention.
Muthukrishna Aiyer v. Sivarama Aiyer Unreported decision; in the judgment of Mockett and Bell, JJs., Mockett, J. stated the test was whether the petition was before the Judge and judicially considered and decided — not whether a clerk remembered to write a number. The Court expressly agreed with Mockett, J.'s observation and applied that practical test to hold non-numbering immaterial in the present facts.

Court's Reasoning and Analysis

The Court proceeded by carefully setting out the chronological facts and then analysing whether the District Judge's rejection of the 4 May 1933 petition on 14 September 1933 was a final order within Article 182(5) of the Limitation Act. The reasoning followed discrete steps set out in the opinion:

  1. The Court observed that the application originally filed on 4 May 1933 complied with the mandatory requirements of Order 21, Rules 11 and 13. The Court treated Rule 14 as "merely permissive" as held in Govind Prasad v. Pawankumar.
  2. Relying on Govind Prasad, the Court explained that if an application is in accordance with law when presented (i.e., it satisfies mandatory requirements), then dismissal for default in complying with a direction under Rule 14 still amounts to a final order under Article 182(5) and therefore commences a fresh period of limitation. The Court stated explicitly: "That is the position here."
  3. The Court addressed the respondents' attempt to distinguish Govind Prasad on the ground that the petition in that case was registered and numbered whereas the petition in the present case was not. The Court rejected that distinction. It held that the decisive questions are whether (a) the application was in accordance with law on presentation, (b) it was judicially considered by the Court, and (c) a final order was passed on it. The absence of a number was of no consequence where those conditions are satisfied.
  4. In support of this position the Court cited six decisions of this Court (including Marimuthu Pillai and others) and referred to Mockett, J.'s observation in Muthukrishna Aiyer v. Sivarama Aiyer that the proper test is whether the petition was before the Judge and judicially considered and decided, not whether a clerk remembered to write a number.
  5. The Court further considered Sattappa Chettiar v. Chockalinga Chettiar and explained why that case was distinguishable: Sattappa Chettiar dealt with rejection for non-compliance with R.17 (a defect in the contents of the application), whereas here there was no question of a defect in the application — it was in order from the outset.
  6. The Court also explained why Khadir Sahib v. Viswanathayyar did not support the Subordinate Judge's conclusion: in Khadir Sahib the unnumbered petition had been returned and was not re-presented within time and therefore was held to have no legal existence; the Court agreed with that reasoning but found it inapplicable where, as here, a petition in accordance with law was placed before the Court and a final order was endorsed upon it.
  7. On this basis the Court concluded that the 14 September 1933 rejection was a final order for the purposes of Article 182(5) and hence started a fresh limitation period. Applying that conclusion to the present appeals, the Court found in favour of the legal representatives (appellants in A.A.O No. 803 of 1943) on the limitation point and, because the parties had accepted the interdependence of the two appeals, this conclusion entailed dismissal of A.A.O No. 196 of 1944.

Holding and Implications

Holding:

The Court allowed A.A.O No. 803 of 1943 with costs and dismissed A.A.O No. 196 of 1944 with costs.

The Court held that the District Judge's order of 14 September 1933 rejecting the execution application was a final order within the meaning of Article 182(5) of the Limitation Act and thus commenced a fresh period of limitation. The Court also held that the absence of registration/numbering of the petition was not fatal where the petition was in accordance with law, was before the Judge, judicially considered, and a final order was passed on it.

Direct consequences and directions:

  • The matters were remanded to the lower Court with directions to proceed with the hearing of the petition for execution filed by the decree-holder's legal representatives on 15 July 1941 and to decide that petition in accordance with law.
  • The decision disposes of the related res judicata contention in A.A.O No. 196 of 1944 by resulting in its dismissal (as conceded by the parties given the interconnectedness of the limitation question and the res judicata plea).

The opinion applies and interprets existing authorities (notably Govind Prasad v. Pawankumar and other cited decisions) to the present facts; it does not purport to lay down a novel principle beyond those applications. The Court expressly distinguished Khadir Sahib v. Viswanathayyar and Sattappa Chettiar v. Chockalinga Chettiar on their facts in reaching its conclusion.

N.R.R
Show full summary ...

    Salvapanthula Seshagiri Rao And Another v. Rebala Subbarami Reddy And Others

    (Delivered by The Chief Justice.)

    These two appeals arise out of an order passed in execution proceedings by the Subordinate Judge of Nellore. The question in A.A.O No. 803 of 1943 is one of limitation. A.A.O No. 196 of 1944 raises a question of res judicata, but it is admitted that if this Court decides the question of limitation in favour of the appellants in A.A.O No. 803 of 1943, it will mean the dismissal of A.A.O No. 196 of 1944.

    In order to appreciate the question of limitation, it is necessary to set out the course of events between the 28th October 1929 and the 3rd March, 1943, the date of the order under appeal. On the 28th October 1929 one Salvapantulu Subba Rao obtained a money decree in the Court of the Subordinate Judge of Nellore for Rs. 2,000 with interest against Rebala Venkatareddi, Rebala Subbarami Reddi and certain others. Venkatareddi was the first defendant and Subbarami Reddi the second defendant. On the 25th October, 1932 the decree-holder applied for execution against the second defendant and the legal representatives of the first defendant, who had died in the meantime. The legal representatives were made parties as respondents 3 to 5. On the 14th January, 1933 the decree was transferred to the District Court for execution. On the 4th May 1933 the decree-holder filed an application in the District Court for execution by attachment and sale of the properties of the second defendant and the legal representatives of the first defendant. The application complied with all the requirements of O. 21, Rr. 11 and 13 of the Code of Civil Procedure, but was returned to the decree-holder on two grounds. The first ground was that the petition was not accompanied by a vakalat. The second was that the Court required, under R. 14 the petitioner to file extracts from the patta register. The pleader who presented the application was under no obligation to file a vakalat because he had filed one in the Subordinate Court in connection with a petition for the amendment of the decree. This was brought to the notice of the Court and the pleader re-presented the petition which was then accepted, although it was not registered or numbered. The District Judge insisted on the patta extracts being filed and on three occasions he granted further time for this purpose. The last date given was the 14th September 1933. As the patta extracts had not been filed on that date, the District Judge rejected the application for execution in an order couched in these terms,

    “Patta extracts not filed. Further time not applied for. Rejected.”

    The appeals turn on the question whether this order was a final order within the meaning of Art. 182(5) of the Limitation Act.

    On the 26th March 1936 the decreeholder filed a fresh application for execution, and on the 4th July 1936, on this application, the District Judge ordered the arrest of the second defendant. The decree-holder failed, however, to pay the necessary batta, and consequently, on the 25th July 1936, the application was dismissed. The decreeholder took no further steps until the 19th July 1939 when he filed a third application for execution. This was dismissed on the 8th December 1939, also for non-payment of batta. On the 20th February 1941, E.A No. 40 of 1941 was filed by the legal representatives of the decree-holder, who was then dead. The application asked for the recognition of the legal representatives of the decree-holder and for the transfer of the decree to the Court of the Subordinate Judge for execution there. On the 8th March 1941 the District Judge passed an order as prayed in E.A No. 40 of 1941 and on the 15th July 1941 the decree-holder's legal representatives filed in the Subordinate Court an application for execution. The judgment-debtors took the objection that the application was out of time. Admittedly his objection would have been well founded if the order of the 14th September 1933 were not a final order on an application made in accordance with law. The Subordinate Judge held that it was not a final order, and relying on the decision of this Court in Khadir Sahib v. Viswanathayyar(1) dismissed the application for execution so far as it concerned the legal representatives of the first defendant. He held, however, that the application was not time barred so far as the second defendant was concerned, because he had not appealed against the order of the 4th July 1936 directing his arrest and the doctrine of res judicata applied. A.A.O No. 803 of 1943 has been filed by the legal representatives of the decree-holder and A.A.O No. 196 of 1944 by the second defendant.

    In Govind Prasad v. Pawankumar the Privy Council said that where an application for execution complied with the provisions of Rr. 11 to 13 of O. 21, but an order passed under R. 14 was not complied with, the application was nevertheless one in accordance with law within the meaning of Art. 182(5) of the Limitation Act. R. 14 was merely permissive, unlike Rr. 11, 12 and 13 which were mandatory. It was pointed out that the Court in that case might well have abstained from requiring the applicant to produce the certified extracts and have proceeded with the execution of the decree, seeing that the property had been under attachment and the necessary particulars about it were already known. In the present case the property was not under attachment, but all the particulars required by R. 13 were given either in the petition or in a schedule annexed thereto. In Govind Prasad v. Pawankumar the application for execution was dismissed for default in compliance with the direction given under R. 14. Their Lordships held that, as the application was in accordance with law, when it was presented, containing all that was required by Rr. 11 and 13, the order dismissing it for default in compliance with the direction of Court under R. 14 was a final order within the meaning of Art. 182(5) and therefore started a fresh period of limitation. That is the position here.

    The learned Advocate for the respondents in A.A.O No. 803 of 1943, who also appears for the appellant in A.A.O No. 196 of 1944, has endeavoured to draw a distinction between Govind Prasad v. Pawankumar and this case on the ground that in the former case the application was registered and a number given to it, whereas in this case it was not registered and consequently received no number. In this connection he relies on observations of Varadachariar, J., in Sattappa Chettiar v. Chockalinga Chettiar (2). We shall refer to that case in a moment, but in passing we may say that we consider that it does not render support for the contention that the non-numbering of the application which was dismissed on the 14th September 1933 is fatal. The questions here are whether that application was in accordance with law on the date of the presentation, whether it was judicially considered and whether a final order passed thereon. The non-numbering of the application is, in our opinion, of no consequence, and there are six decisions of this Court to the same effect, namely, Marimuthu Pillai v. Abdul Ganni Rowther (3); Mahalakshmi Ammal v. Subramania Chettiar (4); C.R. Parankusa Naidu v. Ayyanna Naidu (5); Ramachandra Naidu v. Muthu Chettiar (6); Ponnuswami Voikaran v. Gopalaswami Aiyer(7) and Muthukrishna Aiyer v. Sivarama Aiyer (8). The last two cases have not been reported. But we have perused the judgment in Muthukrishna Aiyer v. Sivarama Aiyer which was decided by Mockett and Bell, JJ. In delivering the judgment there Mockett, J. in dealing with the question of the non-numbering of the petition, said that it seemed to him that the proper test was not whether some clerk remembered to write a number on a petition, but whether in fact the petition was before the Judge, was judicially considered and judicially decided. If these conditions were satisfied, the absence of a number was of no importance whatever. We are entirely in agreement with these observations.

    In Sattappa Chettiar v. Chockalinga Chettiar the facts were altogether different from the facts in the present case and the difference has been discussed in Marimuthu Pillai v. Abdul Ganni Rowther . Sattappa Chettiar v. Chockalinga Chettiar was a case of rejection of an application for non-compliance with an order passed under R. 17 of O. 21. The application was not in order and as the petitioner did not amend it as required by the Court it was rejected. The question was whether that amounted to a dismissal under R. 57 or only a rejection under R. 17. R. 17 is merely concerned with the contents of an application. In the present case there was no question of any defect in the application. The application was in order from the very beginning. In the course of his judgment Varadachariar J. referred to the fact that Sub-R. (4) of R. 17 requires the Court, when the application is admitted, to enter in the proper register a note of the application and the date on which it was made; and it is this passage of the judgment on which the respondents so much rely. As we have indicated, we do not read the remarks of Varadachariar, J. as meaning that when an application has not been numbered, it must be deemed not to be in accordance with law and not before the Court. If his remarks were to be so construed, we should have to express our respectful dissent, but we see no reason for any such construction.

    The learned Subordinate Judge has entirely misread the judgment in Khadir Sahib v. Viswanathayyar . He regarded that case as being authority for the proposition that the application which was dismissed on the 14th September, 1933 was one which could not be deemed to be in existence. In Khadir Sahib v. Viswanathayyar an execution petition was filed on the 2nd October, 1933, but it was not numbered, and three days later it was returned to the decree-holder for the purpose of filing encumbrance certificates. The decree-holder did not comply with this order and did not represent the petition within the time allowed. On the 28th September, 1936 he filed another application for execution and attached thereto the unnumbered petition which had been returned to him on the 5th October, 1933. The judgment-debtors objected to this new application being granted on the ground that the law of limitation had operated to bar it. Thereupon the decreeholder asked the Court to excuse the delay in re-presenting the petition of the 2nd October, 1933 and this the Court refused to do. On these facts Krishnaswami Ayyangar and Kunhi Raman, JJ. held that the petition of the 2nd October, 1933 had no legal existence and therefore any order passed in connection with it could not be regarded as a final order on an application in accordance with law. With respect we agree with all that was said in that case, but it has no bearing here.

    In the present case there was a petition before the Court, it was in accordance with law and on it a final order dismissing it was endorsed. Consequently A.A.O No. 803 of 1943 must be allowed with costs and A.A.O No. 196 of 1944 dismissed with costs.

    The cases will be remanded to the lower Court with directions to proceed with the hearing of the petition for execution which the decree-holder's legal representatives filed on the 15th July, 1941 and to decide it in accordance with law.

    N.R.R

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    Comments

    Salvapanthula Seshagiri Rao And Another v. Rebala Subbarami Reddy And Others
    (Jan 16, 1945)