APPAJI CHETTI Vs. GOVINDASAMI REDDI

JUDGEMENT

(1.) The decree was passed on 28 July 1928. An execution petition was filed on 24 July 1931, which was not presented either by the party or by a vakil duly authorized on his behalf. A notice went on the petition and the judgment-debtor pleaded a payment of Rs. 50. Thereupon three months time was granted and the petition struck off. On 22 January, 1932 another E.P. was filed in which the judgment-debtor, without notice, was arrested. He paid Rs. 25, part satisfaction was recorded and he was released. When the present E.P. was filed on 25 November 1933, the Court discovered that the gentleman who had been conducting the two prior execution petitions was not in possession of a vakalat and it therefore held that the two former petitions were not in accordance with law and. that as the present execution petition was filed more than three years after the decree, it was out of time. It was accordingly dismissed. In revision it is argued (1) that all these three petitions should be considered as one which was interrupted by the District Munsif for statistical purposes and that the vakalat filed in the present application must be deemed to validate all the earlier proceedings; (2) that although the vakil, Mr. Narasimhachari, who had not been given a proper vakalat, was not therefore authorized to conduct the proceedings, yet nevertheless he was a person who, within the meaning of Order 21, Rule 11(2), was a person acquainted with the facts of the case and entitled to make those applications; (3) that on 18 September 1931, in the first E.P. the judgment-debtor acknowledged a payment of 2 September, 1929, within three years of the decree, and that this therefore saves time; and (4) that the judgment-debtor is precluded by the principle of constructive res judicata from raising any objection to the validity of the earlier proceedings as he did not do so during the currency of those proceedings.

(2.) With regard to certain questions of limitation, especially as to whether execution petitions could be filed more than 12 years after the decree, it has been held that where previous execution applications of the same nature have been struck off and time given to the judgment-debtor, such acts are merely for statistical purposes and that it must be presumed that the petitions struck off were in law left pending until a fresh application to continue the same proceedings was filed. If however the first presentation was not one in fact and the order of the Judge was not made in pursuance of an application made in accordance with law and was therefore void, I do not see how a vakalat filed at a later time can validate the earlier proceedings. Whether or no the application was one in accordance with law and whether the acts of the Judge were in pursuance of an application made in accordance with law, will be presently considered. If all these points are decided against the decree-holder, the subsequent filing of a vakalat will not be of any avail.

(3.) It is contended that an execution application need not be presented by the decree-holder or by any person specially authorized on his behalf and that the presentation by any person acquainted with the facts is sufficient. It has been contended that the presentation is not an act contemplated by the Civil Procedure Code and is a mere formality. This argument is based upon the wording of Order 21, Rule 11(2); but that rule only describes the form of the application. It is necessary to distinguish between an application proper, which is a request to the Court to take certain proceedings, and the form in which that request is framed in a document which, although very different, is also spoken of as an application. Order 21, Rule 10 says: "Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree" whereas Order 21, Rule 11(2) merely sets out the forms in which the application is to be drafted. Any person acquainted with the facts can. sign or verify the written application; but only the holder of the decree can apply to the Court under Order 21, Rule 10. Order 3, Rule 1 however permits acts to be done by persons who are not parties if they are the recognized agents or pleaders acting on behalf of the party; so that, reading Order 3, Rule 1 and Order 21, Rule 10 together, it is clear that an application, i. e. the moving of the Court to do an act, must be either by the party himself, by a recognized agent or by a pleader. None of these persons made the present application. The application was made by a person who had no authority at all and was therefore, as stated by the learned Judges in Ananga Bhima Deo V/s. Modono Mahono Deo AIR 1937 Mad 239, no application at all. In that case the proceedings before the Court ended by the execution petitions being struck off without anything fruitful having been done; but in this case, in both the earlier proceedings, some act was done during the course of the invalid proceedings. For example, the defendant came into Court and pleaded a payment of Rs. 50 and he was granted three months time for payment of the remainder. In the second execution application he was arrested and ho deposited a sum of Rs. 25 into Court. Certain expressions used by Burn, J. in his judgment in Ananga Bhima Deo V/s. Modono Mahono Deo AIR 1937 Mad 239 have given rise to the contention that as the executing Court took action, it is a matter of little or no consequence that the proceedings were not properly initiated. They are: Mr. Jagannadha Das has contended that since upon the applications of 1923 the executing Court took action, issuing notices to the judgment-debtors, posting the case for the various dates of hearing, on some dates ordering costs to be paid and the like, therefore the execution petitions cannot, after all that has been done, be treated as mere waste paper or as if they had not been presented at all. This argument we think would have great force if anything had really been done upon these execution petitions....