G.R Naidu And Others v. Yerramsetti Venkataswami Naidu

This appeal deals with a question of limitation in execution. The decree was dated 10th October, 1925. The last execution petition about which there was no dispute was dismissed on 28th June 1930. On 19th June, 1933, an execution petition was presented bearing the wrong number of the suit and it was returned for rectification with the endorsement “suit number is wrong; names of parties do not tally”. Seven days time was allowed, the date of the return being 5th July, 1933. This execution petition was not re-presented at all until 29th August, 1935 when a fresh execution petition was filed and along with it the returned execution petition was re-presented with the suit number corrected, but the endorsement re-submitting the execution petition was unsigned and there was no application to excuse the delay, nor was there any explanation for the delay. On this the order was passed on 9th September, 1935 “Fresh Execution Petition filed. Vakil has not signed. Dismissed”. The defective execution petition was never numbered at all, not even after this somewhat irregular re-presentation. The appellants, representing the decree-holders, seek to rely on this order of dismissal to save limitation for the fresh execution petition which was presented on 29th August, 1935, that is to say, some 11 days before the order of dismissal was passed.

It was decided in a very recent case, Chidambaram Chettiar v. Murugesam Pillai(1), by a Bench of this Court that if an execution petition is returned for amendment and the decree-holder takes no further action upon it, it should be treated as if he had not put in an application at all; that it is not permissible for the decree-holder to extend the period of limitation by simply failing to re-present an execution petition returned for rectification. It was also held that such execution petitions not re-presented within the proper time cannot save limitation and that an order returning an execution petition for rectification by Advocates is not a final order within the purport of Art. 182(5) nor can one read into the order for the purpose of Art. 182(5) of the Limitation Act a clause that in default of re-presentation within the time allowed, the application will stand dismissed.

In a very recent case I followed that decision in applying it to facts very similar to those with which I have now to deal. In A.A.O No. 18 of 1936 there was an execution petition returned for defects and not re-presented for four years. Then a fresh execution petition was filed along with the previously returned petition and an attempt was made to treat the previously returned petition as having been continuously pending, so that the new petition would be in time. This was based on an interpretation of a decision in Muhammad Abu Bukkar Maracair v. Ramakrishna Chettiar(2), which has been dissented from by the learned Judges in the case just quoted. I held that, when an execution petition is returned for amendment, it has no judicial existence pending its re-presentation. If it is re-presented within time duly amended, the date of the original presentation will be the date of the execution application and the same position would result if it is re-presented late and accompanied by an application to excuse delay and the delay is excused. But if the returned petition is withheld for an inordinately long period and re-presented without any application to excuse delay merely in the hope of saving limitation for a fresh application, I held that it could not be deemed to be a pending application so as to save limitation for the fresh application.

An attempt is made to distinguish the present case on the ground that the executing Court actually passed a final order of dismissal on the application in spite of the fact that it was re-presented long after the time allowed. I do not see how the appellant's petition is improved by this order, which in effect was nothing more than an order of rejection of an unfiled execution application re-presented long after the period allowed. When the fresh execution petition was filed along with the re-presented petition, both of them were in fact barred by limitation. It is impossible to my mind to contend that limitation is saved for the new petition by the subsequent order of dismissal passed on the re-presented petition. The re-presented petition cannot be deemed to have been pending at the time when the new petition was filed and the new petition was not filed within three years of the final order on an application made in accordance with law. I may also state that in my opinion an application which does not contain the correct number of the suit, the decree in which it is proposed to execute, cannot be deemed to be an application made in accordance with law. Not only does the Code in O. 21, R. 11 prescribe the number of the suit as the first requirement in an execution petition, but common sense also indicates that an essential feature of an execution petition is that it should be identifiable with the suit under which it is filed. It seems to me that in the present case the defective application was not an application in accordance with law, that it had no judicial existence after it was returned without being filed for rectification and that when re-presented it was barred by limitation and any order upon it passed subsequently cannot avail to save limitation for the fresh execution petition presented contemporaneously. The appeal is therefore dismissed with costs.

Appeal dismissed.

N.R.R