Thathachariar vs Venkatesa Tawker and Another

A preliminary objection has been taken to the hearing of this appeal. The first ground on which the objection was based was that the decree-

holder having died after the hearing of the appeal Before the lower appellate Court, but before the delivery of the judgment by that court, the

appellant who is the son of the decree-holder, ought to have applied, to be brought on the record before the judgment of the lower appellate Court

was delivered. So far as this ground of objection is concerned, we think the judgment should be read as from the date when the court reserved

judgment. As regards this question the authorities appear to be uniform. See Chetan Charan Das v. Balbhadrw Das ILR 21 A. 314 Surendro

Keshub Roy v. Doorgasoondery Dosse ILR 19 C. 513 and Ramacharya v. Anantacharya ILR 21 B. 314 and we are of opinion that the appellant

is not incompetent to prefer this appeal by reason of the fact that he had not been brought on the record before the judgment of the lower appellate

Court was delivered.

The second ground on which the preliminary objection was based, was that the decree having been transferred from the decree-holder to the

appellant by operation of law, the appellant u/s 232 of the CPC ought to have applied for execution to the court which_ parsed the decree. It was

no incumbent on the appellant to make such an application. He adopted the proper procedure in applying to this court to be brought on the record,

and an order having been made by this court bringing him on the record, he is competent to present this appeal. The preliminary objection is over-

ruled.

As regards the merits, the twelve years'' period of limitation expired when the court was closed. The appellant presented his petition for

execution on the first day on which the court opened, and the court made an order u/s 245 allowing it to be amended. The petition was amended

within the time ordered and the appellant contends that this having been done he is not time-barred. The appellant applied for execution on an

unverified petition without producing any evidence to show he held a power of attorney entitling him to apply and without producing his power of

attorney. In the circumstances'', we think the Court ought to have rejected the application and rot to have made an order allowing it to be

amended. Such an order would have left it open to the appellant to make an effective application if he had not postponed taking action till the last

day of the 12 years'' period of limitation.

We think the petition presented to the Court on the last day before the period of limitation expired cannot be said to have been an application

which has the effect of preventing the operation of the statute.

Section 245, no doubt, contemplates that an unverified petition may be returned for amendment, but it does not follow that a petition which is

not verified is an application which will prevent the operation c� the statute of limitation. On the facts of this case we are of opinion that there

was no application for execution such as the law contemplates made before the expiration of the period of limitation.

The appeal is dismissed with costs.