KANHAIYA LAL Vs. PANCHAYATI AKHARA

JUDGEMENT

(1.) I have had the benefit of reading the judgment of my brothers Seth and Bhargava and after the full discussion of the question by them it is not necessary for me to say much. I have already indicated my views in my referring order. I agree with my brother Bhargava that a decree-holder can file an application for execution either in person or through a recognised agent or through a duly appointed pleader. My brother Seth has set out the various steps that have to be taken in the preparation of and in filing a plaint or a memorandum of appeal or an application. As he has pointed out, some of these steps require personal skill or care or exercise judgment, while others are purely ministerial acts and do not need such skill or care. Before the document is brought before the Court the various steps taken amount to preparation, the penultimate step which gives the document, in other respects complete, its legal character, is putting it before the Court in accordance with the rules and then the acceptance of it and its registration by the Court as a plaint or a memorandum of appeal or an application for execution or its acceptance and registration in any other character that the document may have. To bring it before the Court there are two things necessary- the will to file and the physical agency which brings it before the officer appointed to receive the document. I do not think that the physical act of handing over the paper to the officer appointed by the Court or putting it in a box placed for that purpose is any important part of the act of filing or presentation of a document. If there are more decree-holders than one, one of them may under 0, 21, Rule 15, Civil P.C., apply for execution of the decree for the benefit of all the joint decree- holders, but if all of them make fee application them, if it is necessary that the application should be handed over in person, each one of them would have to be holding an end of the paper at the time when it is handed over to the officer concerned unless they have appointed a common agent for the purpose or the same pleader. Similarly, if different decree-holders who are applying for execution have appointed different pleaders they would all have to attend at the time when the paper is given to the officer concerned. Though on the one hand I am not pre- pared to attach too much importance to the purely physical act of banding over a document like a plaint, memorandum of appeal, or application for execution, etc., to the Court or an officer appointed by it, I am not prepared to hold that a party has a right to send such a document by post or through any one he likes. I am, therefore, of the opinion that the physical act of filing or presentation is a part of acting and in my view if a duly authorised agent or a duly appointed pleader does not present the document it is open to the Court or the officer concerned to refuse to take it. If, however, he has taken it and the Court has acted on it, I can set no such defect in the presentation of the document as to take away its legal character merely because the actual physical act of handing over the particular document has been done by others when the Court is satisfied that the application was as a matter of fact intended to be filed by the decree-holder and it was he who had it presented before the officer appointed for receiving such applications through the hands of another. To hold otherwise will, to my mind, result in giving an undue importance to a comparatively unimportant matter. Lawyers clerks in the High Court present all appeals and applications before the Registrar. In all cases, where there are more pleaders than one engaged for various parties, one pleader alone presents the document. Similarly, when there are several parties no one has thought of insisting that every party should attend at the time when the paper is handed over. I, therefore, agree that the question referred to us be answered in the negative. Seth, J.

(2.) The question that has been referred to us for decision runs thus: Whether an application for execution which is in all other respects in order and which has been admitted and registered by the executing Court is not to be considered to have been made in accordance with law within the meaning of Art. 182(5), Limitation Act (IX of 1908) merely because it has been handed over to the Munsarim by a pleader who has not got a vakalatnama from decree-holder. The following facts furnish the background. Respondent, the Panchaiti Akhara, obtained a mortgage decree against appellant, Kanhaiya Lal, in the year 1931. The first application for execution was made on 28 July 1932. It was signed by a person who was entitled to sign it on behalf of the, decree-holder. It is not alleged that it was not duly verified. It was, however, presented in Court, in the sense that it was physically handed over to the officer authorised to receive it, by a legal practitioner, Mr. Mahadev Prasad. It is an admitted fact that no vakalatnama was executed in favour of Mr. Mahadev Prasad and that, therefore, Mr. Mahadev Prasad had not been duly appointed a pleader of the decree- holder. This application was subsequently dismissed for default. The second application for execution was filed on 1 June 1985 obviously more than three years after the date of the decree, but within three years of the final order passed on the first application. It was made obviously within three years of the final order on the first application because it was made within three years of the date of the first application itself. On these facts it was objected by the appellant- judgment-debtor that the application dated 1 June 1935, was barred by limitation, having been made more than three years after the date of the decree. It was contended that the application dated 28 July 1932, was not made in accordance with law and, therefore did not serve to extend the period of limitation.

(3.) Mr. Jagdish Swamp, who argued the appeal on behalf of the appellant, appears to have prepared the case with commendable diligence. lie has presented the case for the appellant with his usual thoroughness and, while I am unable to accept his contentions, I do acknowledge the great assistance received from him in deciding this case.