Order of dismissal if can be held as final order for saving limitation.

This is an appeal against the order of the learned Principal Subordinate Judge of Cuddalore holding that the decree-holder’s remedy was not barred by time and construing that the order passed on the execution application, Exhibit A-1, on the 5th July, 1939, was a final order by which time was saved in favour of the decree-holder. The final decree in this case was passed on the 21st December, 1936, and on the 13th September, 1937, the decree-holder filed an execution application. That application was returned unnumbered for filling up certain particulars and for re-presentation within a month’s time. The Court also directed that an encumbrance certificate should be filed. This application was not re-presented within the prescribed time. Actually it was re-presented on the 3rd July, 1939 with the endorsement that the decree-holder was not pressing the petition, and that it might be rejected or dismissed. On the 5th July, 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, Exhibit A-1. It does not also appear on the record as if there was any oral application for excusing the delay in re-presenting the execution application. When the application was re-presented on the 3rd July, 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 re-presenting the execution petition.

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 having been complied with when the application was re-presented, and there also being no express order excusing the delay in representation, the learned counsel for the appellant contends that the order passed on the 5th July, 1939, cannot be construed to be a final order coming within the scope of Article 182(5) of the Limitation Act. He relies upon four decisions: G.R. Naidu v. Venkataswami Naidu1, Chidambaram Chettiar v. Murugesam Pillai2, Official Receiver of Ramnad v. Narayanaswami Thevar3and Khadir Sahib v. ViswanathaAiyar4. 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 to the facts of this case, and that therefore the learned Subordinate Judge was not justified in holding that the order passed on the 5th July, 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 Chetti5, Nataraja Pillai v. Narayanaswami Iyer6, Ramachandra Naidu v. Muthu Chettiar7and Mahalakshmi Ammal v. SubramaniaChettiar8. In addition to these, he has also relied upon Govind Prasad v. Pawan Kumar9and Hara Kumar Pal Chowdhury v. Shaikh Safatullah10. 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 Muthuvenkatasubba Reddiar v. Thangavel Chetti5. 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