NATARAJA PILLAI Vs. UNARAYANASWAMI IYER

JUDGEMENT

(1.) This petition raises a question of limitation in execution. A decree was obtained on 4 May, 1934. The first execution petition was filed on 4 May, 1937. The Court ordered its return on 21 June, 1937, for supplying certain information, giving time till 3 July, 1937. In fact, the decree-holder did not take a return of the petition with the result that on 16 July, 1937, the petition was rejected by the Court. It is contended that this order of rejection cannot be treated as a final order on a petition in accordance with law on the ground that, after the order for return had been ordered and the time had expired, the petition had no legal existence, the argument being based on the decision in Kadir Sahib v. Viswanatha Iyer . The present case is identical with that dealt with by King, J., in Parankusa Naidu V/s. Ayyanna Naidu (1943) 1 M.L.J. 445. In that case the learned Judge distinguished the Bench decision just cited and pointed out that there was no question of intermediate negligence and subsequent action on the part of the petitioner but it was a case in which the Court found the application within the Court precincts and determined to put an end to it. Whatever be the correct view when a petition is returned in fact to the decree-holder and he fails to represent it within the time allowed and the Court subsequently refuses to excuse the delay and rejects the petition, that is not the position here. It is a case of a petition the return of which was ordered by Court but was never effected. The Court consequently passed an order on the petition dismissing it for the neglect of the decree-holder, and that seems to me to be a final order on a subsisting petition.

(2.) The second execution petition was presented on the 3 June, 1940, that is to say, within three years of the rejection of the first petition. It was returned on 6th June, 1940, for certain particulars, amongst them a list of moveables. It was eventually represented without complying with the requirements, request being made that the petition be recorded and the Court thereupon dismissed the petition. It is argued that this is not a final order on a petition presented in accordance with law oh the ground that Order 21, Rule 12 of the Civil Procedure Code requires a decree-holder to annex to the application an inventory of the moveable property to be attached. We are asked to infer from the return (1) that this is a petition to which Rule 12 would apply, and (2) that the decree-holder had not complied with Rule 12. It does not appear however that this was a case of attachment of move-able property belonging to the judgment-debtor but not in his possession. That being so, Order 21,Rule 12 has no application, and there seems to be no reason for holding that this second execution petition was not in accordance with law.

(3.) There were two subsequent execution petitions prior to the one now under consideration, both of which were rejected for non-compliance with directions to furnish certain particulars. No doubt the decree-holder has neglected to comply with the Court's requirements on numerous occasions, but that surely is not the question. Each of these four execution petitions, in my opinion, ended with a final order which is sufficient to save limitation for the succeeding petitions.