Decided on January 30,1952



Basheer Ahmed Sayeed, J. - (1.) This is an appeal against the order of the learned Principal Subordinate Judge of Cudda-lore holding that the decree-holder's remedy was not barred by time and construing that the order passed on the execution application, Ex. A. 1, on 8-71939 was a final order by which time was saved in favour of the decree-holder. The final decree in this case was passed on 21-12-1936, and on 13-9-1937 the decree-holder filed an execution application. That application was returned unnumbered for filling up certain particulars and for representation within a month's time. The Court also directed that an encumbrance certificate should be filed. This application was not represented within the prescribed time. Actually it was represented oN 3-7-1939 with the endorsement that the decree-holder was not pressing the petition, and that it might be rejected or dismissed. On 5-7-1939 the Court passed the order, "Not pressed, rejected". There was no separate application filed along with this petition, for excusing the delay which was nearly as much as of 18 months in the representation of the execution application, Ex. A. 1. It does not also appear on the record as if there was any oral application for excusing the delay in representing the execution application. When the application was represented on 3-7-1939 it also transpires that the decree-holder did not comply with the requirements as to the furnishing of the encumbrance certificate. In addition to that, there is; also no order excusing the delay in representing the execution petition.
(2.) The petition on which the order was passed being unnumbered, the delay being as much as 18 months, there being no application for excusing the delay, the requirements themselves not haying been complied with when the application was represented, and there also being no express order excusing the delay in representation, the learned counsel for the appellant contends that the order passed on 5-7-1939 cannot be construed to be a final order coming within the scope of Article 182(5), Limitation Act. He relies upon four decisions: -- 'G.R. Naidu v. Venkata-swami Naidu', AIR 1940 Mad 215 (A), -- 'Chi-dambaram Chettiar v. Murugesam Pillai', AIR 1939 Mad 841 (B), -- 'Official Receiver of Ramnad v. Narayanaswami Thevar', AIR 1942 Mad 216 (C) and -- 'Ghulam Khadir Sahib v. Viswa-natha Aiyar', AIR 1943 Mad 297 (D). It is the contention of the learned counsel for the appellant that the facts that arise in the present appeal are on a par with the facts that have been considered in the said four decisions, that the ruling in those decisions should apply if the facts of this case, and that therefore the learned Subordinate Judge was not justified in holding that the order passed on 5-7-1939 was a final order giving the benefit of saving of time to the decree- holder. As against these decisions, the learned counsel for the respondents has invited my attention to the decisions in --'Muthuvenkatasubba Reddiar v. Thangavel Chetti', AIR 1948 Mad 462 (E) --'Nataraja Pillai v. Narayanaswami lyer, AIR 1947 Mad 385 (F), -- 'Ramachandra Naidu v. Muthu Chettiar', AIR 1943 Mad 340 G) and -- Mahalakshml Animal v. Subramanla Chettiar', AIR 1944 Mad 43 (H). In addition to these, he has also relied upon -- 'Govind Prasad v. Pawan Kumar', AIR 1943 PC 98 (I), and -- 'Hara Kumar Pal Chowdhury v. Shaikh Safatullah', 9 Cal WN 844 (J). The latter two decisions of course are on points which have been argued by the learned counsel for the respondents as alternative grounds for sustaining the order of the learned Subordinate Judge. But the sheet-anchor of the learned counsel for the respondents is the decision of the Bench of this Court in -- 'AIR 1948 Mad 462 (E)'. There are of course various other decisions, which learned counsel have not referred to, and which could have been cited by either of them in support of their case. It seems to me that in the mass of conflicting authorities that are available for the position similar to the one that is under consideration, the most healthy and safe rule is to decide each case on its facts, while of course following by analogy the principles and the reasoning that is available in the decisions quoted.
(3.) Learned counsel for the appellant has sought to draw a distinction between the decisions which are against him on the basis inter alia that the delay which has been the subject matter of consideration in those decisions has been very small not extending in any case to more than a few months, and that in the present, case the delay in the representation has been very extraordinary and excessive reaching upto 18 months. He thinks on the basis of that distinction in regard to the undue delay that has been caused in the representation of the execution petition on which the order has been passed to the effect that it was not pressed & rejected, the decisions wherein the delay has been very small ought not to apply. I must say that the length of the delay, whether it be short or long, cannot affect the real point for decision. The Character of the order is not affected by the length of the delay. I do not think therefore that there is substance in the contention of the learned counsel for the appellant that from the point of view, of undue delay, the rulings in the authorities cited against him ought not to apply to the facts of this case.;

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