Presentation of Vakalat for execution petition valid.

This Civil Miscellaneous second appeal arises out of proceedings taken in execution of a final mortgage decree. The petitioner is the son of the judgment-debtor. The final decree was passed on 25th July, 1932. The decree-holder died after the final decree and his son, one Lingasubbayya, appears to have filed three execution petitions, the first on 21st January, 1935, the second on 20th January, 1938 and the third on 31st January, 1941. The third execution application was dismissed on 21st February, 1941. Lingasubbayya’s sons filed an execution petition on 29th January, 1944, which was also dismissed on 24th February, 1944. They again filed the present execution petition, E.P. No. 366 of 1944, on 24th July, 1944, just a day previous to the expiry of the 12 years’ period from the date of the final decree.

The present execution petition was signed and verified by Lingasubbayya’s sons and was also countersigned by one Mr. C.S. Narasimhachariar as vakil for the decree-holder, Veerasubbayya. Mr. Narasimhachariar had no vakalat for Lingasubbayya’s sons, the legal representatives of the decree-holder. Mr. Narasimhachariar’s son, Mr. Srinivasachariar, however, who was working with his father had a vakalat for the respondents who are the legal representatives of the decree-holder. Objection was taken to the validity of the said execution petition on the ground that the execution petition was presented by a counsel who had no vakalat for the respondents and that, therefore, it was a nullity. It may be mentioned that subsequent to the filing of the petition, which was on 24th July, 1944, a vakalat was filed by Mr. Narasimhachariar and also by another counsel, but that was done on 6th July, 1946, after the expiry of 12 years from the date of the final decree. It was contended that the subsequent filing of the vakalat, in any event, could not cure the defect, if any, in the presentation of the execution petition. Not content with the objection raised to the issue of the execution, the appellant filed E.A. No. 139 of 1946 in E.P. No. 366 of 1944, under section 47, Civil Procedure Code, praying that no execution be issued for realising the amount in pursuance of the final decree in O.S. No. 534 of 1930. This application was heard along with the execution petition and both the courts have held that the presentation of the execution petition without a vakalat was only an irregularity and not an illegality which invalidated the proceedings and that irregularity having been subsequently set right by the filing of a vakalat, the defect, in any event, had been set right, and that the execution petition must, therefore, be deemed to have been presented properly on the date when it was presented, and allowed execution to issue.

The decision in Sri Sri Sri Nandamani Ananga Bhima Deo v. Sri Madano Mohono Deo1, is relied upon by the counsel for the appellant in support of his contention that E.P. No. 366 of 1944 not having been presented by a counsel duly authorised in writing on behalf of the respondents could not be said to be a valid presentation inasmuch as the act of the counsel in presenting the execution petition was a mere nullity, and that therefore, no order could be passed on the execution petition which has not been validly presented. The provision in the Civil Procedure Code which governs the filing of execution petitions is Order 21, rule 11 which lays down that in respect of a decree for payment of money, an oral application of the decree-holder at the time of the passing of the decree may be made and if it is otherwise under clause (2) it is provided that every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case and shall contain the particulars mentioned in the said sub-clause. The rule is, however, silent as to by whom the filing or presentation of such a written application s