For a proper understanding of the various points raised and discussed in this Civil Revision Petition it is necessary that a few material facts should be set out. The petitioner before us obtained a decree in O. S. No. 14 of 1908 on the file of the Subordinate Judge's Court of Madura East. It was a decree for money and dated 25th February, 1908. After various execution petitions with which we are not at present concerned E.P No. 36 of 1920 was filed on the 23rd February, 1920 that is to say, a few days before the expiry of 12 years, the time limited for execution of decree under the Procedure Code. On the 27th of September, 1921 final orders were passed on certain claims made in respect of attachment issued in execution and on that date a further order was made in the following words: “Sale papers to be filed by 11th October, 1.921” Somehow or other on the forenoon of 11th October, 1921 this execution petition appears to have been called and in the absence of the execution creditor and his vakil, an order was made by the Subordinate Judge, in the following terms: “Not filed, dismissed.” On the same day an application to restore this petition to file was made on behalf of the execution petitioner supported by an affidavit of the vakil's clerk and an order was made by the Subordinate Judge restoring the petition to the file setting aside the order of dismissal but without any notice of such application to the opposite side. On the same day 11th October, 1921 another application E. A. No. 396 of 1921 was made by the execution petitioner for the purpose of allowing him to carry out certain amendments in the execution petition. Notice was issued in respect of this execution application for amendment of the petition and when it came on for hearing objection was taken on behalf of the judgment-debtor to the order previously passed restoring the execution petition once dismissed. The learned Subordinate Judge gave effect to this objection and held that the order of restoration was wrongly made and he thereupon not only dismissed the execution application for amendment but also made an order that the execution petition was dismissed. Against this A. S. No. 153 of 1922 was preferred to the District Court. The learned District Judge reversed the order of the learned Subordinate Judge holding that the order for restoration was properly made and that therefore the application for amendment should be remanded to the lower Court for disposal in the ordinary course. He also made a further order setting aside the order of dismissal of the execution petition made by the Subordinate Judge.
Against this the judgment-debtor preferred Appeal against Appellate Order No. 63 of 1924 to this Court. The judgment of this Court in that case is reported in Narayana Chettiar v. Muthu Chettiar. This Court came to the conclusion that the application for restoration was incompetent either under O. 9 of the Procedure Code or under the review section or even under Sect. 151 of the Procedure Code. In the result therefore this Court reversed the order of remand made by the District Court and confirmed the order made on the application for amendment by the learned Subordinate Judge. The Civil Revision Petition before us was presented on the 6th March 1926 for the purpose of revising the order of dismissal of the execution petition made on 11th October, 1921.
The first objection that has been argued with regard to the competency of this C. R. P. is that subsequent to the order of dismissal passed by the Subordinate Judge there was another order of dismissal passed by the same Subordinate Judge on the 14th March, 1922, that that order should be deemed to have been finally restored by the decision of this Court above referred to and that therefore the petitioner could not reasonably ask for this Court revising an earlier order of dismissal when a subsequent order of dismissal has been restored by this Court. It is difficult to accept the contention that the subsequent order of dismissal by the Subordinate Judge was really a judicial order on any question raised or contentions made before him with regard to the execution petition. When he came to the conclusion that the order of restoration was wrong, it necessarily, followed that the previous order of the Court dismissing the execution petition stood and therefore the order of dismissal by the Subordinate Judge on the 14th March, 1922 merely amounted to a confirmation of the previous order, or in other words, a declaration that by reason of the order for restoration being set aside the previous dismissal stood. However when this matter came up on appeal before the District Judge he not only took the view already adverted to but made a distinct order setting aside the order of dismissal made by the Subordinate Judge. No appeal specifically was taken with regard to that order by the judgment-debtor to this Court, and there is no discussion at all with regard to it in the judgment of this, Court. We have also sent for the formal order passed by this Court on that judgment and it is clear therefrom that what the Court did was merely to cancel the order of remand and confirm the dismissal of the application which was made for amendment. It could no doubt be argued that as the order of the Subordinate Judge subsequently dismissing the execution petition has been set aside rightly or wrongly by the District Judge and as that order has not till now been disturbed it follows that the execution petition is still pending. But there seems to be no doubt whatever that even what the District Judge did do or did purport to do was only again to declare the result of his findings with regard to the restoration application on the order of dismissal of the execution petition originally made by the Court on the 11th October. As he took the view that the order of restoration was proper we must construe this order setting aside the later order of dismissal by the Subordinate Judge only to amount to a declaration that as the order of restoration was proper the subsequent order of dismissal should be set aside. If that is the true view there can be no question at all of any subsequent order of dismissal being operative after all these proceedings and appeals. We must therefore take it that the state of things at present is the subsistence of the order of dismissal of the 11th October 1921, and it is that order which this Court is now invited to revise and set aside.
The next objection to the maintainability of this C. R. P. is naturally the fact that it has been presented to this Court considerably over 4 years after the order was made. In this case we are asked to exercise the revisional jurisdiction of this Court, and it may at once be pointed out that though as a matter of practice this Court exercises the jurisdiction only on the application of the parties the jurisdiction itself is not confined to such cases. Again when this Court made a conventional rule to the effect that such C. R. Ps. should be filed within the same period as appeals, namely 90 days it was not on any ground that the period of limitation was so fixed for the purpose of filing C. R. Ps. but, as it is a revisional jurisdiction and therefore within the discretion of the Court, the Court said it would not consider a C. R. P. filed after that date. The question therefore becomes necessary to be considered whether in this case having regard to the lapse of the long period the Court would be justified in interfering with the order under consideration. Even if it is not a mere C. R. P. but an appeal, there seems to be little doubt that having regard to all the circumstances of the case the petitioner would as appellant be entitled to ask the Court to exclude from computation the whole of the period taken up by him from almost 10th October, 1921 till about the very date on which the C. R. P. has been filed in prosecuting the various proceedings and appeals therefrom which had for their clear object the restoration of the execution petition which was dismissed. It is true that the ground on which the restoration was sought or the order of restoration that was made was sought to be sustained was not the same as here. But there can be no doubt that the relief was the same. It cannot be suggested that the petitioner was either guilty of any laches or negligence in the matter, when we find him throughout the period engaged in prosecuting or defending the proceedings which had for their object the very thing for which he has now filed this petition. No doubt it is an exceptional case and must be treated so. The question therefore of the mere lapse of time, it seems to us, cannot be taken into consideration and objection therefore must be rejected.
The learned vakil for the petitioner argued that the order made on the 27th September being to the effect that the sale papers should be filed by the 11th October, 1921 the execution petitioner had time till the end of the 11th for the purpose of filing such papers, and that therefore the Court acted without jurisdiction and at any rate with material irregularity in calling up the petition on the forenoon of that date and dismissing it on the ground that the order previously made had not been complied with. Though this construction of the order was strenuously opposed by the learned counsel for the respondent, it seems to us that the matter was not even open to argument. The expression ‘by’ clearly indicates the utmost limit of time being the end or the expiry of the date or period indicated. We have been referred to Murray's New English Dictionary and there we find that it is clearly pointed out that the word ‘by’ when used with reference to time indicates either ‘in the course of’ or ‘on’. The word ‘by’ therefore must be construed in the same manner as “on or before.” If that is the proper construction as we hold it to be, it is clear that the Court was not entitled to call up the case on the forenoon of the very day the whole of which the petitioner had for the purpose of complying with the order of Court. There could possibly be no default on the part of the petitioner if at any rate he had the other remaining hours of the day for the purpose of complying with the order.
The learned counsel for the respondent also strenuously contended that the order was read and understood by the execution petitioner himself and also by his legal advisers as meaning or intimating that the sale papers could be filed on or before the previous date, namely the 10th October. We are not satisfied that that was really how the order was understood by the petitioner. It cannot be said that the mere reference to the order for the purpose of restoration can be regarded as indicating the meaning that they attached to the expression. After all what we have to do is not really to see how the parties understood but what the order of Court really means. There is also no foundation for the contention that was put forward that the 11th October 1921 was the date to which the hearing of the execution application itself stood adjourned. There is nothing in the records or even in the B Diary to show that the hearing of the petition stood adjourned to that date. In view of these considerations we think that the order of the Subordinate Judge dismissing the execution petition on the forenoon of the 11th October was wrong.
One last argument was also advanced by the learned counsel for the respondent and that was that it was open to the petitioner before us the execution creditor to have made this wrong construction of the order not only a ground in his application for restoration but also a ground of defence on appeal to this Court. The subject-matter of the application on which the order for restoration was made was the default to appear of the party and all the Court since then till the final order on appeal to this Court were concerned merely with investigating the question whether the Court had jurisdiction, once the execution petition was dismissed, to restore it under any of the provisions of law which might be regarded as in any manner applicable thereto. If no doubt this point had been made a ground of attack or defence at any time and the matter was adjudicated previously it would not be open to the petitioner now to come up on revision. There is absolutely no indication anywhere throughout all these proceedings of this matter having been discussed or considered. The mere fact that the question now raised is capable of being regarded as an afterthought seems to us to be really no objection to the maintainability of the petition if otherwise we should be satisfied that the order now under revision was clearly wrong and unsustainable. This Court having held in the decision above referred to that the application for restoration was not competent under O. 9 of the Civil Procedure Code or under the review section or even under Sect. 151 of the Procedure Code so far at least as the present case is concerned the decision is final and conclusive, though we may take leave to observe in this connection that if the same question should arise in some other case the decision of the learned Judges in that case might require re-consideration. The result of holding that even though an execution application for a large amount might come to be dismissed by the first Court for non-appearance or for failure to put in some paper or some such formal defect the Court has absolutely no power at all to set aside the order of dismissal under any provisions of law would be virtually to hold that a person by some such small inadvertence would be entirely losing the benefit of a decree passed in his favour by a Court of law. Anyhow in this case as we are satisfied that the order of the 11th of October was clearly wrong and was made without jurisdiction it follows that it must be set aside. We accordingly direct that the order of dismissal of E. P. No. 36 of 1.920 dated 11th October, 1921 be set aside and the execution petition restored to file and disposed of in the usual course. Having regard to the long period of time that has elapsed between the date of the order now under revision and this present revision petition we direct each party to pay and bear his or their own costs.
K. V. S.Petition allowed.