The main legal point established in the judgment is the interpretation of 'final order' within the meaning of Article 182(5) of the Limitation Act and the duty of the Court to admit execution applications that comply with procedural requirements.

Somayya, J.

1. The question for decision in this appeal is whether execution of the decree is barred by limitation. The execution application under consideration is E.P. No. 307 of 1938 filed on 30th July, 1938. The decree sought to be executed is a mortgage decree passed on the 31st July, 1926, in O.S. No. 55 of 1924, on the file of the District Munsifs Court, Sattur. There were several execution applications in between and the question is whether the present execution application is not saved by the previous applications.

2. The first application for execution was filed on the 1st of July, 1927, and it was returned for production of sale papers. This application was not re-presented with the sale papers within the time given but it was presented along with the next execution application filed on the 23rd June, 1930. This time also the sale papers were not filed with the execution petition bat on the undertaking that they will be filed later, the execution application was numbered as E.P. No. 362 of 1930. There were a number of defendants, some were reported to be dead, the twelfth defendant was reported to have died two years-prior, the twenty-first defendant was also dead and some other defendants were not served including the ninth defendant who was away at Rangoon. Evidently owing to the trouble in service, the petition was not pressed and it was accordingly dismissed on the 22nd July, 1930. There was also a decision of the Madras High Court which held the field at that time that where some of the parties die after an execution petition is filed, that petition could not be proceeded with and that a fresh execution petition should be filed, Palaniappa Chettiar v. Valliammai Achi AIR1927Mad184 Though the case related to the death of the decree-holder, the body of the judgment shows that the decision applies to the case of a judgment -debtor as well.

3. The next application was filed on the 6th of June, 1933, without the sale papers; and on that ground the E.P. was returned on the 28th June, 1933. This execution petition was not re-presented within the time fixed but was presented along with the next application filed on the 22nd June, 1936. This application was. taken on file and numbered as E.P. No. 1 of 1937. The petitioner (decree-holder) died about 23rd November, 1937, and then it was adjourned on the 27th of November to the 4th December, 1937 on the ground that the decree-holder had died. On the 4th December, the order was:

Petitioners pleader states that the petition is not pressed. Dismissed.

It must be noticed that the petitioner was already dead; that fact had been brought to the notice of the Court and the petitioners pleader had no locus standi to make any representation particularly that the petition was not then pressed. The obvious duty of the Court was to wait and see whether any one would come on record to continue the E.P. as the legal representative. By this time the decision of the Full Bench of the Madras High Court had held in Venkatachalam Chetti v. Bamaswami Servai (1931) 62 M.L.J. 1: I.L.R. Mad. 352 that where a party dies pending an execution application the same might be continued by or against the legal representative and the earlier decision was overruled. The E.P. No. 1 of 1937, was dismissed as not pressed on the 4th December, 1937. The present execution application (E.P. No. 306 of 1938) was thereafter filed by the legal representative of the decree-holder and it has been held by the lower Courts to be barred by limitation on the ground that an order returning an execution petition is not a final order within Article 182, Clause (5) of Schedule II of the Limitation Act. The third column of Article 182, Clause (5), as amended in 1928, runs thus:

(Where the application next hereinafter mentioned has been made), the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order.

The lo