TMI Blog1936 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ;appeal' and appellate Court . 2. The view taken by the learned Judges in Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : I.L.R. 36 Mad. 135, necessitated, if we may say so with respect, their adopting a somewhat curious line of reasoning. They were faced with the difficulty, what should be the starting point when the revision petition fails; and what, when it succeeds? Logically, from their conclusion that the word 'appeal' does not include 'revision' in neither event should an order upon a revision petition give rise to a fresh starting point. But they were driven to hold that when the revision petition is dismissed, time runs from the original decree or order but when it succeeds, not from the original, but from the fresh decree or order, either under Clause (1) or Clause (4). This involves a certain contradiction, as the learned Judges felt compelled to have recourse to the same clause, for two dissimilar purposes; when the revision petition is dismissed, time would run from the original decree or order under Clause (1); when it is allowed, under the same clause, from the fresh decree or order. Moreover, by a sort of fiction, the learned Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate jurisdiction' is. That may be exercised in a variety of forms and may be invoked sometimes as a matter of right and sometimes subject only to certain specified conditions or limitations, such, for instance, as those prescribed in the provision in the Code relating to the revisional powers of the High Court; but as Subramania Aiyar, J., goes on to observe, no such limitation, however much it may circumscribe the exercise of the power, touches the intrinsic quality of the power itself (p. 81). 5. The wording of Clause 39 of the Letters Patent has given rise to a similar question. It enacts that an appeal lies to the Privy Council from a final judgment or order passed by the High Court on appeal, and that led to the question whether an order made by the High Court in the exercise of its revisional jurisdiction or powers of superintendence, came within the purview of that clause. Mookerjee and Cox, JJ., held in Secretary of State for India in Council v. British India Steam Navigation Co. (1911) 13 C.L.J. 90 that such an order, though made in revision, is appealable as there is no ground for construing the word 'appeal' used in Clause 39 in a narrow sense. Mooke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly dated as of the 24th June. On the 27th August, 1920, Madan Mohan presented an appeal to the High Court, not from the decrees of the Subordinate Judge, which in truth it was, but from what was wrongly alleged to be an order made on the 24th June. As his objection was only to the decision, in so far as it related to his claim against the other decree-holders, he joined them alone as parties to the appeal and not the judgment-debtors. The appeal, though irregular in form, as not being an appeal against the decree of the Subordinate Judge, and though insufficiently stamped, was admitted and heard by the Court, and in the result, it was dismissed, both on the ground of irregularity and upon the merits, and the dismissal was embodied in the decree of the High Court dated the 24th August, 1922. The appellants on the 3rd October, 1923, presented an application for execution of the decree against the judgment-debtors. It was contended for the latter that the three years were to be calculated from the 24th June, 1920, in which case the application would be manifestly out of time; it would, on the other hand, be within time if the critical date was that of the decree of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; within the ordinary acceptation of that term bears not the narrower but the extended meaning. 11. Our answer to the question referred is therefore in the affirmative. JUDGMENT Venkataramana Rao, J. 12. The question in this case is whether the execution application dated 16th November, 1932, filed by the plaintiff is barred by limitation. For the disposal of the same, a few dates of the prior proceedings may be relevant. They are 24th November, 1924, the date of the decree 24th June, 1929, the date of the application for execution, 3rd November, 1927, the date of the order of the High Court dismissing the revision petition presented against the decree and 16th November, 1932, the date of the present application for execution. When this matter came up on a prior occasion for hearing before Stone, J., and my learned brother, the question was whether the starting point for the execution of the decree would be the date of the dismissal of the revision petition in the High Court. Subramania Pillai v. Seethai Animal (1911) 24 M.L.J. 457 : I.L.R. 36 Mad. 135 held that it would not. As a doubt was felt as to the correctness of that decision, the matter was referred to a Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sixth defendant and at the end of the array of the defendants, the following note is added that the legal representative of defendants 1 and 6 is Rama Nadar, thus indicating that Rama Nadar is sought to be added as the legal representative of defendants 1 and 6. Then, turning to the column 'Name of the judgment-debtor against whom the decree is to be executed', it is stated 'C.P.A. Palanikumara Nadar and others'; 'and others' would certainly include Rama Nadar. Therefore the application is in substance one to have the decree executed also against the legal representative of the first defendant and the sixth defendant. The law does not require an application to bring on record a person as the legal representative of, a defendant. All that is necessary for a valid execution petition against the legal representative is that the execution application must pray for execution against a person as the legal representative of another. That in my opinion is complied with in the present application. It is not every defective application that can be said to be an application not in accordance with law. The only defect that can be alleged in this application is that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a final order, because it is unnecessary for the disposal of this case. In my opinion an order would be a final order within the meaning of the clause if it terminates the execution proceeding so far as the Court passing it is concerned. The order need not be one on the merits. I agree with my learned brother when he says: I do not think it can be contended reasonably that the legislature intended that where the Court chose to pass certain orders which were not final in the sense that they did not deal with the merits of the application it was to be held that there was no final order within the meaning of the amended article. Mottayya Padayachi v. Rajagopalan (1936) M.W.N. 547 at 548. 15. There is nothing in the decision in Kesavuloo v. The Official Receiver, West Tanjore (1936) 71 M.L.J. 336 which runs counter to this view. In fact, Venkatasubba Rao, J., at p. 341, observes: The words 'final order' imply that the proceeding has terminated so far as the Court passing it is concerned. 16. He cites with approval the decision in Kadiresan v. Maung San Ya A.I.R. 1933 Rang. 87 where it was held that an order made on an execution application closing the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for the raising of the points at present. That decision no doubt supports in some respects the argument of the respondent's Advocate. Apart from this, I have given my anxious consideration to that decision because that decision purports to disapprove of my decision in Mottayya Padayachi v. Rajagopalan (1936) M.W.N. 547. It is with unfeigned sorrow that I express ray inability to change my opinion on the point. I do not wish to say anything more on this subject because my learned brother is prepared to base his decision, with which I agree, on what I would call the narrow ground that the order in that case was of a different tenor from the order in the present case and also that there are certain observations in that decision which are themselves sufficient to our present conclusion. In fact, in that bench decision there are two definitions-a positive and a negative definition--of a final order. At p. 359 it is stated that: When an order is made returning a petition, it does not deal judicially with the matter of the petition and cannot, therefore, be regarded as final. 19. The other definition is given at p. 341 thus: The words 'final order' imply that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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