Kanhaiya Lal vs The Panchayati Akhara on 23 December, 1948

JUDGMENT

Malik, C.J.

1. I have had the benefit of reading the judgment of my brothers Seth and Bhargava and after the full discussion of the question by them it is not necessary for me to say much. I have already indicated my views in my referring order. I agree with my brother Bhargava that a decree-holder can file an application for execution either in person or through a recognised agent or through a duly appointed pleader. My brother Seth has set out the various steps that have to be taken in the preparation of and in filing a plaint or a memorandum of appeal or an application. As he has pointed out, some of these steps require personal skill or care or exercise judgment, while others are purely ministerial acts and do not need such skill or care. Before the document is brought before the Court the various steps taken amount to preparation, the penultimate step which gives the document, in other respects complete, its legal character, is putting it before the Court in accordance with the rules and then the acceptance of it and its registration by the Court as a plaint or a memorandum of appeal or an application for execution or its acceptance and registration in any other character that the document may have. To bring it before the Court there are two things necessary-the will to file and the physical agency which brings it before the officer appointed to receive the document. I do not think that the physical act of handing over the paper to the officer appointed by the Court or putting it in a box placed for that purpose is any important part of the act of filing or presentation of a document. If there are more decree-holders than one, one of them may under 0, 21, Rule 15, Civil P.C., apply for execution of the decree for the benefit of all the joint decree-holders, but if all of them make fee application them, if it is necessary that the application should be handed over in person, each one of them would have to be holding an end of the paper at the time when it is handed over to the officer concerned unless they have appointed a common agent for the purpose or the same pleader. Similarly, if different decree-holders who are applying for execution have appointed different pleaders they would all have to attend at the time when the paper is given to the officer concerned. Though on the one hand I am not pre-pared to attach too much importance to the purely physical act of banding over a document like a plaint, memorandum of appeal, or application for execution, etc., to the Court or an officer appointed by it, I am not prepared to hold that a party has a right to send such a document by post or through any one he likes. I am, therefore, of the opinion that the physical act of filing or presentation is a part of acting and in my view if a duly authorised agent or a duly appointed pleader does not present the document it is open to the Court or the officer concerned to refuse to take it. If, however, he has taken it and the Court has acted on it, I can set no such defect in the presentation of the document as to take away its legal character merely because the actual physical act of handing over the particular document has been done by others when the Court is satisfied that the application was as a matter of fact intended to be filed by the decree-holder and it was he who had it presented before the officer appointed for receiving such applications through the hands of another. To hold otherwise will, to my mind, result in giving an undue importance to a comparatively unimportant matter. Lawyers’ clerks in the High Court present all appeals and applications before the Registrar. In all cases, where there are more pleaders than one engaged for various parties, one pleader alone presents the document. Similarly, when there are several parties no one has thought of insisting that every party should attend at the time when the paper is handed over. I, therefore, agree that the question referred to us be answered in the negative.

Seth, J.

2. The question that has been referred to us for decision runs thus:

Whether an application for execution which is in all other respects in order and which has been admitted and registered by the executing Court is not to be considered to have been ‘made in accordance with law’ within the meaning of Article 182(5), Limitation Act (IX of 1908) merely because it has been handed over to the Munsarim by a pleader who has not got a vakalatnama from decree-holder.

The following facts furnish the background. Respondent, the Panchaiti Akhara, obtained a mortgage decree against appellant, Kanhaiya Lal, in the year 1931. The first application for execution was made on 28th July 1932. It was signed by a person who was entitled to sign it on behalf of the, decree-holder. It is not alleged that it was not duly verified. It was, however, presented in Court, in the sense that it was physically handed over to the officer authorised to receive it, by a legal practitioner, Mr. Mahadev Prasad. It is an admitted fact that no vakalatnama was executed in favour of Mr. Mahadev Prasad and that, therefore, Mr. Mahadev Prasad had not been duly appointed a pleader of the decree-holder. This application was subsequently dismissed for default. The second application for execution was filed on 1st June 1985 obviously more than three years after the date of the decree, but within three years of the final order passed on the first application. It was made obviously within three years of the final order on the first application because it was made within three years of the date of the first application itself. On these facts it was objected by the appellant-judgment-debtor that the application dated 1st June 1935, was barred by limitation, having been made more than three years after the date of the decree. It was contended that the application dated 28th July 1932, was not made in accordance with law and, therefore did not serve to extend the period of limitation.

3. Mr. Jagdish Swamp, who argued the appeal on behalf of the appellant, appears to have prepared the case with commendable diligence. lie has presented the case for the appellant with his usual thoroughness and, while I am unable to accept his contentions, I do acknowledge the great assistance received from him in deciding this case.

4. The contention of the learned Counsel for the appellant is, that an application for execution may be presented only by a decree-holder, his recognised agent or by a pleader duly appointed by him by means of a vakalatnama and that the execution application dated 28th July 1932, not having been presented by any such person, the defect in presentation was so serious as to make the application “not in accordance with law.”

5. An examination of the provisions of the Code of Civil Procedure discloses that, except in the case of a pauper suit or a pauper appeal, the legislature has not attached any importance to the person presenting a plaint, a memorandum of appeal or an application. While meticulous provisions exist regulating the signing and verification of these documents and while the legislature has taken care to designate with particularity the person to whom such documents may be presented, it has not taken care to say, except in the aforesaid two cases, as to who should present these documents. Even in these two cases the exception appears to have been made to enable the Court to examine immediately the person presenting an application for leave to sue as a pauper or an application to be permitted to appeal in forma pauperis. The exception does not appear to have been based on the ground. that any importance attaches to the person who physically hands over these applications. It is legitimate to infer from this that it was not the intention of the legislature that a plaint, a memorandum of appeal or an application should not be presented by any one other than a party, his pleader or his recognised agent.

6. Instituting a suit, preferring an appeal or making an application requires the performance of many acts, some of which are purely mechanical. To take the case of an appeal by way of illustration, the grounds of appeal have to be drafted and settled, then they have to be scribed or typed on a piece of paper, the piece of paper itself has to be procured, court-fee stamps have to be purchased, the memorandum of appeal so prepared has to be signed and then it has to be physically handed over to the officer authorised to receive it, It would be preposterous to contend or to hold that each one of these acts should be performed by a party, his pleader or his recognised agent. If it is not necessary that one of such persons, alone, should purchase the court-fee stamp or scribe or type the grounds of appeal, there seems to be no reason why the physical act of handing over the memorandum of appeal, which stands upon no better footing than any one of the other mechanical acts, should be required to be performed by such a person only, specially when, as indicated above, the legislature has not expressly so provided. I find myself in perfect agreement with the following observations of the Lahore High Court in Mt. Barkata v. Feroze Khan A.I.R. (31) 1944 Lah. 131:

One may usefully compare the provisions of Order 33, Rules 3 and 4 and Order 44, Rule 1, Civil P.C., where a personal presentation of an application for permission to sue or appeal as a pauper is clearly provided. If, therefore, the legislature had wanted a particular person to present the petition or appeal, it should have said so specifically. In the absence of any similar provision in regard to the persons who are to present suits or appeals in Court, it does not seem to be incorrect to draw the inference that the legislature did not insist on the person who was to present these documents to the Court or to an officer appointed by the Court to receive them.

The question is whether a plaint or an appeal could have been presented by any person other than the appellant or his recognised agent or pleader? We know for a fact that every day plaints and appeals are being put either in boxes provided for the purpose, or before subordinate officers of Court by pleaders’ clerks or agents who do not come within the category of persons mentioned in Order 3. Why should the mechanical act of presenting plain or appeals to the clerks of Courts or putting them in boxes provided for that purpose be necessarily done by the party himself or his recognised agent or pleader so long as they are signed and whenever necessary verified by persons required or authorised to sign or verify them If this appeal could have been put in the box or laid before the Clerk of Court by any person who had been asked to do so by the appellant or her pleader, Mr. Ghulam Dastgir or his reoognised agent, it could equally have been done by Mr. Shah Mohammed himself not as a pleader but as an individual.

7. Rules 1 and 4 of Order 3, Civil P.C. constitute the foundation of the contentions of the learned Counsel for the appellant that the application dated 28th July 1932, was not presented according to law. Order 3, Rule 1, Civil P.C., runs as follows:

Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognised agent, or by a pleader appearing, applying or acting as the case may be on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

Order 3, Rule 4 provides that for the appointment of a pleader to act in any Court for a party, a document in writing signed by the party or his recognised agent is required. Learned Counsel for the appellant contends that the presentation of the application for execution was an act within the meaning of Order 3, Rule 1, Civil P.C., and could be performed only by the decree-holder, his recognised agent or by a pleader duly appointed by him and Mr. Mahadev Prasad not having been appointed a pleader in the manner provided for in C. 3, Rule 4, Civil P.C., the presentation of the execution application by him was of no legal consequence. The question, therefore, which we have to consider is whether the physical handing over of the execution application by Mr. Mahadev Prasad was an act within the meaning of Order 3, 1, Civil P.C.

8. The word ‘act’ was interpreted for the first time in the year 1873 by a Bench of the Calcutta High Court In Re: Fuzzle Ali 19 W.R. Cr. 8 with reference to Section 5, Pleaders and Mukhtars Act, XX [20] of 1865. That section contained a prohibition to the effect that no person shall appear or act as a mukhtar in any Court unless he shall have been admitted and enrolled and shall be otherwise duly qualified to practise as a mukhtar. Petitioner Fuzzle Ali was convicted and fined for having acted in contravention of the provisions of the Pleaders and Mukhtars Act. All that he was found to have done was to have stood behind a vakil and to have instructed him. Phear J., who delivered the judgment, held that this did not amount to acting observing that
Fuzzle Ali, according to Judge’s account, did not appear for the prisoner or plead for the prisoner, and he did not act for him, unless the standing behind the Vakil and suggesting questions amounted to acting within the meaning of Section 5 of this Act. I think that the word ‘act’ there means the doing something as the agent of the principal party, which shall be recognised or taken notice of by the Court as the act of that principal; such for instance as filing a document.

9. Its meaning was again considered by the same High Court in Kali Kumar Roy v. Nobin Chunder Chuckerbutty 6 Cal 585 with reference to Section 13 of the same Act, XX [20] of 1865, where it was observed:

To act for a client in Court is to take on his behalf in Court, or in the office of the Court, the necessary steps that must be taken in the course of the litigation in order that his case may be properly laid before the Court.

10. In both these cases the question for consideration was what that expression meant in Act XX [20] of 1865. The meaning to be attached to the expression ‘to act’ in Order 3, Rule 1, Civil P.C., came up for consideration before the Rangoon High Court in Sawarmal v. Kunjilal A.I.R. (26) 1939 Rang 1 where Dunkley J., delivering the judgment of the Court after quoting the observations of Phear J in-Fuzzle Ali case 19 W.R. Cr. 8 and of White J., in Kali Kumar Boy’s case 6 Cal. 585, which have already been set out above, proceeded to observe:

With the greatest respect, I am prepared to adopt these definitions; but, in my opinion, there is nothing-in Order 3, Rule 4, which prohibits a pleader from delegating some of his functions, and the Code plainly contemplates that certain functions of a ministerial nature may be delegated. A ministerial act in relation to this matter, is an act which does not require the personal skill or attention of the pleader and which can be done without consideration of facts or circumstances. To hold otherwise would result in complete chaos in the administration of justice and would, within a short time, bring about a state of affairs which would render it impossible for the Courts of law to carry on their work. For the payment of court-fees, translation and copying fees and the like, merely ministerial acts are ‘acting’, just as much as the presenting of a plaint or a memorandum of appeal is acting, and if the judgments of the Assistant District Court and this Court on second appeal are correct, the result would be that officers of the Courts could receive such payments only from the hands of the parties themselves or through pleaders duly appointed, obviously an impossible state of affairs.

11. While I agree with the conclusions of the Rangoon High Court in this case, I find it rather difficult concur in the reasons upon which the conclusions are based. I do not think that it impossible to go to the length of holding that any function that amounts to acting can be delegated by a pleader to another pleader or any other person. The proviso to C. 3, Rule 4, Civil P.C., enables a pleader to delegate his function of pleading to another pleader and thus impliedly prohibits any function of acting to be delegated ”inclusio unius est exclusio alterius.” In my opinion, the correct basis of the conclusions is that the performance of ministerial acts, which do not require personal skill or care, or the exercise of judgment, does not amount to acting within the meaning of the rules under consideration. The Calcutta cases relate to the interpretation of a different statute. It is, therefore, not necessary for me to express any opinion on the question as to whether the expression ‘act’ occurring in Act XX of 1865 was accurately defined in the quotations from those judgments. It is enough to say that having regard to the scheme and subject-matter of the Code of Civil Procedure the definition contained therein cannot be literally applied to the interpretation of Order 3; Rules 1 and 4.

12. The word ‘act’ used as a noun in Order 3. Rule 1 and used as verb in Order 3, Rule 4, Civil P.C., has not been defined either in the Code itself ok in any other statute. It is legitimate to assume that it has been used in a cognate sense in both the rules because the two rules are to be found in the same Order of the Code and relate to the same topic. Our task is to interpret it according to its true intent and meaning. To put it differently, we have to ascertain what meaning the legislature intended to convey by the use of this word, the object of all interpretation being to determine what intention is conveyed, expressly or impliedly, by the language used by the legislature. In this task we have to be guided by the rule laid down, per curium, as early as the year 1822, in The King v. Hall (1822) l R. & C. 123 at page 136:

the meaning of particular words in Acta of Parliament as well as other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion, on which they are used, and the object that is intended to be attained

and by the following observations to be found in the speech of Halsbury L. C, in Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs and Trademarks (1898) 1898 A.C. 571 at page 575: “Turner L.J. in Hawkins v. Gathercole (1855) 6 D. M. & G. 1 at page 21, and adding his own high authority to that of the Judges in Stradling v. Morgan (1584) 1 Plowd. 204, after enforcing the proposition that the intention of the Legislature must be regarded, quotes at length the judgment in that case : that the Judges have collected the intention ‘sometimes by considering the cause and the necessity of making the Act…sometimes by foreign circumstances (thereby meaning extraneous circumstances), so that they have ever been guided by the intent of the legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion,’ and he adds .’ ‘We have therefore to consider not merely the words of this Act of Parliament, but the Intent of the Legislature, to be collected from the cause and necessity of the Act being made, from a comparison of its several parts and from foreign (meaning extraneous) circumstances so far as they can justly be considered to throw light upon the subject.’ Lord Blackburn in Rever Wear Commissioners v. Adamson (1877) 2 A.C. 243. (763) says : ‘In all cases the object is to see what the intention expressed by the words used. But from the imperfection of language, it is impossible to know what that intention is without enquiring further, and seeing what the circumstances were with reference to which the words were used and what was the object, appearing from those circumstances, which the person using them had in view’.”

13. Rules 1 and 4 of C. 3, Civil P. 0., are rules of procedure. The primary object of such rules is to facilitate the progress of proceedings before the Courts. Their object is not to cause obstruction or inconvenience. The object of Order 3, Rule 1, Civil P.C., appears to be to afford greater facility to a party and to enable him to perform certain acts, which he would have been otherwise required to perform in person, through his recognised agents or pleaders. The other object of the rule appears to be to prevent perpetration of fraud by an unauthorised person taking steps without the consent or knowledge of the party concerned, and to avoid the waste of time of Courts, which would otherwise be involved in many cases in determining whether a particular step taken by a person, not duly authorised, was taken with the consent and knowledge of the party on whose behalf it purported to have been taken and whether it is binding on that party. For the fulfilment of the above objects, it is not necessary that there should be a written authority in the shape of a power of attorney or a vakalatnama to enable an agent of a party to perform acts which are merely mechanical in their nature and to which no importance is attached. Before C. 3, Rule 4, Civil P.C., was amended by Act XXII [22] of 1926 advocates were not required to have a vakalatnama in their favour to enable them to represent their clients in Court whereas pleaders belonging to other classes were required to be authorised by vakalatnamas in order to represent their clients. It was thought that the advocates belonged to a more responsible class and could be better trusted, but that the same trust could not be reposed in other pleaders and that their authority should be precisely defined by their clients. The amendment in the year 1926 obliterated the distinction made between pleaders of different classes. Instead, it made a difference between ‘acting’ and ‘pleading’ (without precisely defining what was included within ‘acting’) and thus legislated that for acting on behalf of a client every pleader or advocate required a written authority. Considering the object the legislature appears to have had in view, it is reasonable to infer that it did not intend that a written authority should be required even for the performance of mere mechanical acts not requiring the exercise of any skill or judgment. It is notorious that many unimportant acts are performed by the clerks of pleaders on behalf of their clients and the legislature may be presumed to have been aware of this practice. If it was intended that this practice should be stopped it is to be expected that the legislature would have used more specific language to convey this intention and would not have contented itself by using a word which, in the practice that prevailed, was not considered to include the performance of mere mechanical acts.

14. The Code of Civil Procedure authorises a litigant to set the machinery of the Court in motion by ‘instituting’ a suit, ‘preferring’ an appeal or ‘making’ an application. These are the acts authorised by the Code and may therefore be performed only by a party himself or through his recognised agent or his duly appointed pleader; but this does not require that the entire transaction should be physically performed by the litigant, his recognised agent or his duly appointed pleader. Indeed, it is possible to conceive of a case where a proceeding may be initiated by a person and the machinery of the (court set in motion without any physical act having been performed by that person. To take a concrete example, a decree-holder, desiring to make an application for execution, has the necessity particulars entered in a tabular form on a properly stamped paper by some scribe, he then has the application signed and verified by ft person fully acquainted with the requisite facts (This is permitted by Order 21 Rule 11, Civil P.C., he does not touch the application at all but has it placed in the hands of the officer authorised to receive it by one of his attendants in his presence. It does not appear to me to be possible; under these circumstances, to dispute that the application for execution was made by the decree-holder, the reason being that the decree-holder was the author of the entire transaction of making the application although he did not perform any physical act himself. It is the animus that guides and supervises the performance of the entire transaction and assumes its authorship and not the performance of various physical acts, that makes the transaction an act of the person who controls its performance. I have already stated hereinbefore that the presentation of a plaint, a memorandum of appeal or an application, in the sense of physically handing it over to the person authorised to receive it, is merely an element of the entire transaction of instituting a suit, preferring an appeal or making an application. I consider that according to its true intent and meaning the word ‘act’ refers to the transaction as a whole and not to its every constituent element, and that it does not refer to mere mechanical acts which do not require the exercise of any skill, discretion or judgment. It is a question of fat depending upon the facts and circumstances of a particular case and depending upon a consideration of transaction as a whole whether the institution of a suit or the preferring of an appeal Use making of an application may or may not, be regarded to be the act of a particular person, but it will not cease to be his act merely because the plaint, the memorandum of appeal or the application was physically handed over by an unauthorised person. I have been led to this conclusion on a comparison of the two rules we have to interpret with” the other provisions of the Code and on a consideration of the object, which appears to me, to have been intended to be attained by the legislature. The intention which I infer accords not only with the necessity of the matter but also with reason and good discretion. To hold otherwise would lead to intolerable inconvenience and undesirable results as pointed out by the Rangoon High Court and Lahore High Court in the cases to which I have already referred. It would lead to other inconvenient results also, for example, where there are a large number of plaintiffs, appellants or applicants, all of them would be required to hold the plaint, memorandum of appeal or the application simultaneously and to put it conjointly in the hands of the officer authorised to receive it, unless they employ a pleader or a recognised agent to perform this task. This may be physically impossible where their number is sufficiently large.

15. Considerations of inconvenience may justifiably be taken into account:

In determining either the general object of the Legislature or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be the true one. An argument drawn from an inconvenience, it has been said, is forcible in law;” Maxwell, 9th edition, page 198.

16. The learned Counsel for the appellant has cited a large number of cases to support his contention. Out of these, Muhammad Ali Khan v. Jas Ram A.I.R. (1) 1914 ALL. 536; Mohammad Qamar Shah Khan v. Mohammad Salamat Ali Khan A.I.R. (17) 1930 ALL.112; Chittar v. Laxminarayan A.I.R. (8) 1921 Nag. 27; Modono Mahono Deo v. Kunja Behari Ananga Bhima Deo and Ors. A.I.R. (22) 1935 Mad. 786; Mian Bashir Ahmad v. Mrs. Mary Minck A.I.R. (25) 1938 Lah. 698; K. L. Gauba v. Indo Swiss Trading Co. Ltd. A.I.R. (23) 1936 Lah. 500; Sheikh Palat v. Sarwan Sahu and Ors. A.I.R. (7) 1920 Pat. 581; Shambhu Nath v. Badri Das A.I.R. (8) 1921 ALL. 210 (2) and Loknath Misir and Ors. v. Sheo Saran Misir A.I.R. (14) 1927 ALL. 816 are distinguishable on the ground that the memorandum of appeal or an application under Order 9, Rule 9 Civil P.C., in one of these cases was not only presented by a pleader, not duly authorised, but it was also signed by an unauthorised pleader. In some of these cases, it clearly appears that the memorandum of appeal or the application was signed by an unauthorised pleader and in others the decision has proceeded on the assumption that the appeal was preferred or the application was made by an unauthorised person. These cases are, therefore, no authority in support of the proposition that the mere physical act of handing over a memorandum of appeal or an application may not be performed by a person who is neither a party nor his recognised agent nor even his duly appointed pleader. In some of these cases, e.g. in Muhammad All v. Jas Ram A.I.R. (1) 1914 ALL. 686 and Mohammad Qamar v. Md. Salamat Ali A.I.R. (17) 1930 ALL. 112, it has been said that there was no proper appeal because it was not presented by a duly authorised pleader, but it is obvious from a perusal of these decisions that the word ‘presented’ was used as a synonym for and interchangeable with ‘filed’ or ‘preferred’. The question which re-quires decision in the present case was neither argued nor considered nor decided in those cases. I shall now proceed to consider the cases on which the learned Counsel for the appellant has laid emphasis.

17. In Chilta v. Mt. Jaffo A.I.R. (18) 1931 ALL. 767, a plaint was presented in the Court of the Munsif of Muttra by a pleader, Babu Bishambhar Nath on behalf of the plaintiffs Mt. Jaffo and others. The vakalatnama purporting to appoint Babu Bishambhar Nath pleader for the plaintiffs was duly signed by the plaintiffs and accepted by Babu Bishambhar Nath. His name was, however, omitted from being entered in. the space left blank for the name of the pleader in the body of vakalatnama. It was held by Mears C.J. and Sen J. that the vakalatnama being defective Babu Bishambhar Nath was not authorised to present the plaint and that the plaint was properly returned by the Court. The provisions of Order 3, Rule 1 were not considered and the only point considered and decided in the case was whether the irregularity in the execution of the vakalatnama was substantial or whether it was so trivial that it could be ignored. It was neither argued nor decided that for the mere presentation of a plaint, that is, for handing it over, to the officer authorised to receive it, it was not necessary that Babu Bishambhar Nath should have been authorised by a duly executed vakalatnama. In my opinion, this decision does not in any way support the contention of the learned Counsel. I am further of the opinion that in so far as it holds that the presentation of the plaint was illegal it has not been correctly decided. The precise question, whether a plaint was required to be presented by a duly authorised person, was decided by a Full Bench of this Court six months later in Wall Mohammad Khan v. Ishak A.I.R. (18) 1931 ALL. 507 wherein Sulaiman A.C.J., who delivered the judgment of the Full Bench, observed:

As there is no specific rule either requiring or expressly authorising the plaintiff to present the plaint, it is doubtful whether Order 3, Rule 1 of the Code would apply to such a case. If it does not apply, the presentation by a person orally authorised to do so would be valid. But even if it does, we are clearly of opinion that the omission to comply with this provision would be a mere irregularity and not an absence of jurisdiction.

The Full Bench did not definitely rule that Order 3, Rule 1 was not applicable to the presentation of plaints and although it was inclined to the view that Order 3, Rule 1 had no application, it did not go beyond expressing doubts about its applicability. I have, however, given this matter my careful consideration and have reached the conclusion, for the reasons already indicated, that the mere presentation of a plaint or a memorandum of appeal or an application does not constitute an ‘act’ within the meaning of Order 3, Rule 1.

18. Particular stress was placed on Official Receiver, Aligrah v. Hira Lal A.I.R. (22) 1935 ALL. 727. In that case an application for the substitution of names of the legal representatives of the deceased decree-holder and for the execution of the decree was made by a pleader, the vakalatnama in whose favour was defective, inasmuch as the name of the pleader was not entered in the body of the vakalatnama and the space left for that purpose had remained blank. The application itself was not signed by the applicants but was signed by the pleader who held the defective vakalatnama. The proceedings did not fructify and the execution case was ultimately struck off. When the next application for execution was made an objection was taken that it was barred by limitation and it was urged that the earlier application made by the pleader whose vakalatnama was defective was not an application made in accordance with law within the meaning of Article 182 (5), Limitation Act, and that it did not for that reason form the basis of a fresh period of limitation. It would thus appear that this was a case where not only the application for execution was presented by a pleader not duly authorised, but it was also signed by an unauthorised pleader and was, therefore, actually made by him. This defect in the application is noted in para. 1 of the judgment. The question that engaged the attention of the Bench was, however, whether, in view of the circumstances that had happened, it was open to the judgment-debtor to object that the previous application was not in accordance with law. The question, whether the previous application was or was not in accordance with law, was not given any prominence. Perhaps it was not even argued and it was assumed that the previous application was not in accordance with law. Having referred to this question in a passing way in the following words,
So far as the defect in the vakalatnama is concerned the point is covered by the authorities of this Court, namely, Muhammad Ali Khan v. Sukhu 11 A.L.J. 458 and Chitta v. Mt. Jaffo A.I.R. (18) 1931 All. 767, the application ‘as filed had not been filed, by a duly authorised person and was not in accordance with law.

the judgment proceeds to deal with the question whether the judgment-debtor could raise the objection at that stage. The above quotation clearly indicates that the Bench was not called upon to apply its mind to the question whether an application for execution could or could not be presented by a person other than a party, his pleader or his recognised agent. The reference to the cases of Muhammad Ali Khan v. Suhhu ill A.L.J. 458 and Chitta v. Mt. Jaffo A.I.R. (18) 1931 ALL. 767 indicates that, if anything was argued at all in this connexion, it was the question whether the defect in the Vakalatnama was so serious that it could not be ignored. I further notice that the word ‘presented’ was not used. It was not said that ‘the application as presented had not been presented by a duly authorised person.’ What was said was that “the application as filed had not been filed by a duly authorised person.” The word ‘filed’ is wide enough to comprise the entire transaction of making the application including its being signed and its being presented. I am of the opinion that ‘filed’ was used in this wide sense and that, what was intended to be ruled was that an application made by a pleader with a defective vakalatanama was not an application made in accordance with law. If it was intended to hold that the mere act of presentation by a pleader, who held a defective vakalatnama, made the application ‘not in accordance with law’, I respectfully dissent from that view.

19. Nandamani Anangabhima and Anr. v. Modono Mahono Deo A.I.R. (24) 1937 Mad. 239 supports the contention of the learned Counsel for the appellant inasmuch as the facts of that case were similar to the facts of this case and it was held that the previous application for execution was not made in accordance with law. It, however, appears from a perusal of the judgment that it proceeds on the basis that the application was made by the pleader not duly authorised. The portion of Order 3, Rule 1 considered relevant in that case was quoted as follows:

Any application to any Court, required or authorised by law to be made by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made by the party in person or by his recognised agent or by a pleader appearing, applying or acting on his behalf.

This quotation was followed by the observation:

It is not alleged in this case that the party made these; applications to the Court in person. It is not alleged that ho made them by a recognised agent. The only case is that he made them by his pleader Mr. Thumbanadham.

I have already observed that there is a difference between the making to an application and the physical handing over of the paper on which the application is engrossed. The learned Judges referred to the contentions of the rival parties in the following words:

This means according to the contentions of the judgment-debtor that the act of the pleader in presenting these execution petitions was a mere nullity. According to the contentions of the learned advocate for the appellants, Mr. Jagnnadha Das, the want of a vakalatnama was a mere irregularity which may be cured or condoned.

and after observing that the authorities cited had no bearing on the question which awaited their decision concluded as follows:

This is not a case of any defects in particulars in any document. It is a case simply of want of authority on the part of the pleader to act. Order 3, Rule 4 says that no pleader shall act unless he has been appointed by a document in writing. This means, in our opinion, that if the pleader has not been appointed by a document in writing, he is wanting in capacity or competence to act. It is not a question of defeat in the pleader’s authority; it is not a question of an irregularity or even of an illegality in anything he does; it is simply a question of want of capacity to act. If a pleader purports to do something which he has no power or capacity to do, we think, it must be clear that what he purports to do can have no legal effect.

It would appear from these quotations that the question whether the mere handing over of an application was or was not an act within the meaning of Rule 3, Rule 1, Civil P.C., was neither argued nor considered in this case and that it was decided on the assumption that the making of an application and the presenting of an application are the same thing. The actual point decided in this case appears to be that, on the assumption that the presentation of an application by a pleader not duly authorised amounts to the making of an application, the want of authority on the part of the pleader renders his act absolutely invalid. I have already said that the physical handing over of an application does not amount either to making the application or acting and in so fat-as this case may be taken to have held otherwise I find myself in respectful disagreement with it.

20. Appaji Chetti v. Govindasami Reddi A.I.R (24) 1937 Mad. 760 only follows Nandamani’s case A.I.R. (24) 1937 Mad. 239 and my observations with regard to that case apply to this case also.

21. All India Barai Mahasabha through Rshetra Nath Sen v. Pandit Jangi Lal Chaurasia A.I.R. (28) 1941 Oudh 169 relates to an application under para. 20 of Schedule II, Civil P.C. It appears to have been conceded in this case that C. 3, Rule 1, Civil P.C., applies to presentations of plaints and applications and all that was argued in the case was that it applies to appearances and presentations made in or to any Court only and not to presentations of plaints, applications, etc., to the Munsarim of the Court. This contention was not accepted and it was held that the presentation to a Munsarim stood on the same footing as presentation to the Court. It was held following Mohammad Qamar v. Md. Salamat Ali A.I.R. (17) 1930 ALL. 112; Sheikh Palat v. Sarwcm Sahn A.I.R. (7) 1920 Pat. 581; Muhammad Ali v. Jas Ram A.I.R. (1) 1914 All. 636 and Nandamani Anangabhima v. Modono Mahono Deo A.I.R. (24) 1937 Mad. 239, that presentation of every document in Court must be governed by Order 3, Rule 1.I have already referred to these cases and have distinguished the first three cases on the ground that these cases did not relate merely to presentation but that in those cases the whole transaction was performed by an unauthorised person. I have also discussed in detail the Madras case. -I am, therefore, of the opinion that the first three cases do not support this proposition of law laid down by the Oudh Court. I wave already indicated my reasons for differing ‘from the view expressed in the Madras case if it intended to hold that the mere handing over of a plaint, a memorandum of appeal or an application amounts to acting within the meaning of Order 3, Rule 1, Civil P.C. For these very reasons I find myself unable to agree with the view of the Oudh Chief Court. It was further held in this case by the Chief Court of Oudh following Mian Bashir Ahmad v. Mrs. Mary Minck A.I.R. (26) 1938 Lah. 698 and In the matter of Filing Powers A.I.R. (13) 1926 Bang. 215, that a pleader, who puts in an application ‘acts’. Both these Courts, the Lahore High Court in Mt. Barkata v. Feroze Khan A.I.R. (31) 1944 Lah. 31 and the Rangoon High Court in Sawarmal v. Kunjilal A.I.R. (26) 1939 Rang. 1, have subsequently reconsidered the question and arrived at a contrary conclusion. The Rangoon High Court itself has distinguished In the matter of Filing Powers A.I.R. 113 1926 Bang. 215 in Sawarmal v. Kunjilal A.I.R. (26) 1939 Rang. 1, has being inapplicable to presentation of plaints. With due respect to the learned Judges of the Oudh Chief Court I do not consider that a pleader, who performs the physical act of handing over a petition, ‘acts’ within the meaning of Order 3, Rule 1, Civil P.C.

21a. The learned Counsel for the respondents has relied upon Jagadeesh Chandra Dhabal Dev v. Satya Kinkar Shahana 63 Cal. 733; Sawarmal v. Kunjilal A.I.R (26) 1939 Rang; Mt. Barkata v. Ferosse Khan A.I.R. (31) 1944 Lah. 131 and Ghulam Sarwar Faqir Mohd. v. Nabi Bakhsh Faju A.I.R. (28) 1941 Pesh. 1. These cases do support his contention and while I may not be able to concur in all the reasons assigned in support of the conclusions arrived at in these cases, I find myself in perfect agreement with the conclusions themselves. I have already indicated my reasons in support of these conclusions.

22. Order 3, Rule 1, Civil P.C., does not apply to all acts. It applies only to acts required or authorised by law to be done by a party in a Court. The presentation of a plaint, a memorandum of an appeal or an application is obviously not an act required by law to be done. I consider that it is not even an act ‘authorised by law to be done.’ There are also provisions in the Code itself authorising appeals to be preferred (Sections 96, 100, 104 and Order 43, Civil P.C.) and execution applications to be made (Order 21, Rule 10), but there is no law authorising the presentation of a plaint, a memorandum of appeal or an application. It would thus appear that what has been authorised is the transaction itself and not the presentation of these documents. I am, therefore, of the opinion that Order 3, Rule 1, Civil P.C., does not apply to the presentation of applications for execution for this reason also.

23. Assuming, however, that the presentation of the application was irregular the next question for consideration is whether this makes it ‘not made in accordance with law.’ The expression ‘in accordance with law’ to my mind, is an adverbial clause modifying the verb ‘made’ and not an adjectival clause qualifying the noun ‘application.’ It cannot be both and having regard to its position in the sentence it should be read as an adverbial clause according to rules of grammar. The requirements of the rule are, therefore, not satisfied if the previous application was perfect in form but was not properly made. Of course an application that is not proper in form cannot be said to have been properly made but the word ‘made’ cannot be limited to form alone. An application made after the period of limitation, though perfect in form, would not be an application made in accordance with law and so an application on behalf of a dead person would not be an application made in accordance with law. It is, however, settled law that every irregularity, of whatsoever nature, does not vitiate an application so as to take it out of the category of an application ‘made in accordance with law.’ It was observed in Gapal Chunder v. Gosaindas Kalay 2 C.W.N. 556 F.B. that:

The question whether an application for execution or for taking some step in aid of execution is one according to law within the meaning of Article 179, Clause (4), has to be determined with reference to the circumstances of each case; and while on the one hand an application must be in substantial compliance with the law in order that it may be regarded as one coming within the meaning of Clause (4), on the other hand, it is not every informality that would vitiate an application and take it out of that clause. Were it otherwise, bona fide applications for execution would fail to save limitation owing; to trivial defects of form-a result which I do not think Legislature could have intended.

Article 179, Clause (4) of the earlier Limitation Act corresponds to Article 182, Clause (5) of the present Limitation Act. It was held in Pitambar Jana v. Damodar A.I.R. (18) 1926 Cal. 1077 that:

The expression ‘in accordance with law’ in Article 182 (5) should be taken to mean that the application, though defective in some particulars, was such upon which execution could be issued. If the omission were such as to make it impossible for the Court to issue execution upon it, it should be held that such an application is not in accordance with law.

24. In Govind Prasad v. Pawan Kumar A.I.R. (30) 1943 P.C. 98 the provisions of Order 21, Rule 14 were not complied with and, therefore, the execution application was returned to the decree-holder. On a subsequent application for execution, there arose the question whether the previous application, which had been returned, came within Article 182 (5), Limitation Act. Sir Madhavan Nair, delivering the judgment of their Lordships of the Judicial Committee, observed:

In the circumstances, their Lordships are not prepared to hold that the order made by the Court dismissing the application would render it one not ‘made in accordance with law’.

I consider that the criterion to determine whether an application is an accordance with law or. not, is whether there has been any illegality or mere irregularity in the making of it. If there was a mere irregularity it would not make the application not ‘made in accordance with law” The test to distinguish an illegality from an irregularity was laid down by Coleridge J. in Holmes v. Russel 9 Dowe. 28 in the following words, quoted in Rajani Kant Ghosh v. Sheikh Rahman A.I.R. (11) 1924 Cl. 408:

It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.

Even if it be assumed that a pleader without a proper vakalatnama has no right to present an application for execution and that when it is brought to the officer authorised to receive it, he may refuse to accept it, there is nothing in the Civil Procedure Code which prevents the officer authorised to receive applications for execution from receiving it from such a pleader. The objection regarding presentation may also be waived by a judgment-debtor. As held by the Full Bench in Wali Mohammad Khan v. Ishak A.I.R. (18) 1931 ALL. 507 F.B. a defect in presentation is mere irregularity. Therefore, even if there were any force in the contention put forward on behalf of the appellant that the presentation of an application for execution by an unauthorised pleader is defective, that fact by itself could not make the application not ‘made in accordance with law.’

25. My conclusions may be summarised as follows : (1) That the mere physical act of handing over an application for execution does not amount to acting within the meaning of Order 3, Rule 1 or Order 3, Rule 4, Civil P.C. (2) That the presentation of an application for execution is not an act required or authorised to be done within; the meaning of Order 3, Rule 1, Civil P.C. (3) That this physical act does not amount to ‘applying or ‘making an application’ and may be performed by any person to whom the person making the application entrusts it. (4) That even if it be assumed that the presentation by such a person is not strictly in accordance with law the defective presentation constitutes a mere irregularity, which does not make the application for execution not ‘made in accordance with law.’ I, therefore, answer the question referred to us in the negative.

Bhargava, J.

26. The question referred to us for decision and the facts leading to the reference are set out in detail in the judgment of my learned brother Seth J.; consequently, I would mention only those facts which are relevant and material to the discussion. In the year 1931, the Panchayati Akhara at Allahabad, the respondent in this appeal, obtained a mortgage decree against Kanhaiya Lal, who has filed the appeal. On 28th July 1932, an application for execution of the decree was made to the Court which passed the decree; and this is the application which is mentioned in the question which is under consideration. The application was written, signed and verified in the manner prescribed by Rule 11 (2) of Order 21, Civil P, C, and as such it was an application “in accordance with law” as far as the form of the application was concerned. A pleader presented the application to the Munsarim of the Court, who, we may assume, was an officer appointed to receive the applications for execution of decrees. The pleader had not been appointed by the decree-holder for the purpose by a document in writing, i.e., by means of a vakalatnama. The application was admitted and registered; but later on it was dismissed for default in prosecution. We are called upon to decide whether the application was made in accordance with law within the meaning of Article 182(5), Limitation Act.

27. The learned Counsel for the appellant has contended that the application could be presented by the decree-holder in person, by his recognised agent or by a pleader duly appointed for the purpose, and inasmuch as it was not so presented and the pleader who presented it had no authority, it would not be deemed to have been made in accordance with law. He has based his argument on the provisions contained in Order 3 of the Code. The rules contained in Order 3 have been framed with the obvious intention of enabling a party to put in appearance, make an application or do an act, which he is required or authorised by law to do, through a recognised agent or a pleader. The heading given under Order 3 is Recognised Agents and Pleaders,” Rule 1 of the said Order lays down:

Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf…:

Rule 2 defines who are “recognised agents.” Rule 3 deals with the service of process on recognised agents. Rule A relates to the appointment of a pleader. Clause (1) of Rule 4 is in these terms:

No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

28. On behalf of the respondent, it has been argued that the application for execution was not required by law to be presented by a party person; hence the mere fact that it was presented by a pleader who had not been duly appointed, could not render it invalid and it should be treated as an application made in accordance with law.

29. The learned Counsel for the respondent has laid great stress on the fact that there is no clear provision in the Code of Civil Procedure that an application for execution must be presented by the decree-holder in person; and it has been pointed out that there is no such provision in regard to a plaint or memorandum of appeal either. It has been further pointed out that in the Code there is a provision for the filing of an application for permission to sue or appeal in forma pauperis by the pauper himself; and if it was intended that an application for execution, a plaint or memorandum of appeal should also be presented by the decree-holder, plaintiff or appellant in person, a clear provision must have been made.

30. We have, therefore, to see whether an application for execution is an application or an act required or authorised by law to be made or done by a party in any Court. Under Rule 10 of Order 21, Civil P.C.

Where the bolder of decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

31. Rule 15 of the same Order relates to cases where a decree has been passed Jointly in favour of several persons and lays down:

(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased;

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.

32. The manner in which the decree-holder has to apply is laid down in Rule 11 of the same Order. If the decree is for payment of money, the decree-holder may apply by means of an oral application at the time of the passing of the decree; and every other application for execution of a decree has to be written, signed and verified in the manner provided in Clause (2) of Rule 11, and the application has to be made to the Court which passed the decree.

33. It would thus appear that as far as an application for execution is concerned, there is a clear provision in the Code that if the holder of a decree desires to execute it after the date of the decree, he shall apply by means of a written application, which must be made to the Court which passed the decree or to the officer appointed in that behalf. The very use of the word “apply” suggests that the mere drawing up of an application in proper form is not sufficient and the decree-holder has to do something more. The application has to be presented. The decree-holder is the person who seeks the help of the Court in securing the benefits allowed under the decree. He is the party interested in the execution of the decree; so he must make the application.

34. The General Rules (Civil) which apply to all proceedings and matters in civil Courts subordinate to this Court lay down that a “party” shall file a written acknowledgment from the opposite party or his counsel of having received a copy of a written statement, an objection under Section 47 or under Order 21, Rule 58, Civil P.C., an application for the amendment of any pleadings, an application for the appointment of a receiver, an application for amendment of a decree and an application for remitting or setting aside an award an objection to an award (Rule 23 (a) of chap III), which means that the said documents shall also be filed by the party concerned. Rule 23 of the same Chapter contemplates “presentation” of “every application or petition,” and the name of the person actually presenting same has to be endorsed thereon. The petitioner can present, along with his petition, the receipt slip, which has to be returned to the applicant under Rule 24 of the said Chapter.

35. The petitions and applications are to be presented to the Court or to an officer appointed by the Court, and the presentation to an officer of the Court is in law presentation to the Court, in as much as, apart from the Court, the officer has no legal status. No other method of presentation of a petition or application is recognised by law. It was suggested during the course of arguments that in this Court certain petitions are put in a box provided for the purpose. I have not been able to find any provision in the rules of this Court which allows the keeping of such boxes, much less presentation of petitions to the court through such boxes. As far as I am aware the box which is kept outside the office of the Deputy Registrar of this Court, is meant for putting application for copies, for translation and printing, for refund of monies and similar applications which are made to the Deputy Registrar. If in some districts such boxes are kept, they are only meant for miscellaneous applications.

36. The Rules draw a distinction between a party to a suit, appeal or the proceeding in the court and any such party’s advocate, attorney or vakil” on the one hand and a stranger to such suit, appeal or proceeding on the other hand, matter of inspection of records of such suit, 1 or proceeding. Under Rule 7 of chap. IX only arty or his advocate, attorney or vakil can apply for inspection of the record. Rule 8 lays conditions subject to which a stranger can apply for inspection. A similar distinction is drawn in the matter of applications for copies.

37. The whole scheme of these Rules seems that a party must appear and act in a court himself or through his attorney or vakil and a stranger cannot appear or act for the party.

38. The Rules of this Court also contemplate presentation of appeals and applications to the court and such presentation is to be distinguished from presentation to an officer appointed by the court to receive the application for report as to sufficiency of stamp duty, etc. The description of the person presenting the memo of appeal or the application is to be given in full. Rule l of chap. V, prohibits the Registrar, Deputy Registrar and the Assistant Registrar from endorsing the fact of “presentation” on a memo of appeal or application on days on which the Court is closed for the disposal of ordinary civil business.

39. Section 26, Civil P.C., provides:

Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

The word “suit” ordinarily means and, apart from some context, must be taken to mean a civil proceeding instituted by the presentation of a plaint. The institution of a civil proceeding implies the existence of a person who initiates the proceedings. That person is described as a plaintiff and his name has to be mentioned in the plaint. In Section 26, no doubt, there is no mention as to who is to present the plaint; but from the omission it is not possible to infer that the plaint can be presented by any person other than the plaintiff. In Wall Mohammad Khan v. Ishak Alt Khan A.I.R. (18) 1931 All. 607 F.B., it was pointed out that when the presentation of the plaint is necessary for the institution of a suit, it is necessarily implied that it must be presented by the plaintiff personally or by some person duly authorised by him. It could never have been the intention of the Legislature that the proceeding by way of suit should be initiated by a stranger; and there is no indication of such an intention in the Code of Civil Procedure. The plaint is a technical term used to denote a petition or application to a Court complaining of a wrong done and to obtain relief against the wrong-doer. As a general rule, every petition or application must be presented by the party concerned.

40. In Wall Mohammad Khan’s case A.I.R. (18) 1981 ALL. 607 F.B. cited above, it was, no doubt, also pointed put that there was no rule which in express terms, requires that the plaintiff should file the plaint personally; but, as already pointed out, it was recognised that when the presentation of the plaint is necessary for the institution of a suit, it was necessarily implied that it must be presented by the plaintiff personally or by some person duly authorised by him. If the provisions contained in Section 26 of the Code necessarily imply that the plaintiff should present the plaint personally or through some person duly authorised by him, I fail to see how it can be said that the plaint is a document not required by law to be presented by a party. In any case, from the provisions relating to the presentation of plaints, it cannot be inferred that an application for execution which has to be made by the decree, holder, is an application not required by law to be made by the party concerned.

41. Order 41, Rule 1, Civil P.C., is in these terms:

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf….

Rule 2 of the same Order provides:

The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal;….

Under Rule 3:

(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose be being amended within a time to be fixed by the Court or be amended then and there….

The next rule in this Order is as follows:

4 Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

42. It would thus appear that the law con. templates the presentation of an appeal and the appearance of the appellant for being heard or to receive the memorandum of appeal in case it is required to be amended. There is also a provision authorising one of the appellants to file an appeal on behalf of the other appellants in case there are more than one. In my opinion, the presentation of an appeal is an act which must be performed by the party concerned in the manner provided by Rule 1 of Order 3 of the Code. The presentation of a memorandum of appeal by an unauthorised pleader has been held, in a number of cases, to be a defect which goes to the root of the matter. Consequently, from the mere omission to mention the person who is to present a memorandum of appeal in Rule 1 of Order 41 of the Code, I am not prepared to infer that an application for execution is not a document required by law to be presented by the decree-holder himself.

43. I find it difficult to accept the contention raised on behalf of the respondent that the Legislature did not attach any importance to presentation of plaint, application for execution of decree and memorandum of appeal, and for that reason no clear provision was made except where it was considered important. It has to be borne in mind that Rule 4 of Order 3 of the Code in clear terms prohibits a pleader from acting for any person in any Court. He cannot appear in Court even to plead for any party, unless he has filed a memorandum of appearance; the word “act” has not been defined in the Code of Civil Procedure; but obviously it is the manifestation of a person’s will to do a certain thing. For example, when a decree-holder desires to execute his decree, there is a determination of will and in order to give effect to it he has to exert his will; when he applies to Court, there is manifestation of the will. As such when he files an application he does an act. A person is said to act for another when he is employed by him for the purpose. The presentation of a plaint, an application or memorandum of appeal is an act, and when such an act cannot be done by a pleader, it is difficult to believe that the Legislature intended that it should be done by a person other than a party or his recognised agent.

44. If we recognise the principle that a plaint, application or memo, of appeal can be presented by any person, it would open the door for all sorts of fraudulent appearances and acts. Such a contingency was anticipated in Wali Mohammad Khan’s case A.I.R. (18) 1931 All. 507 F.B. and it was observed:

We do not mean to imply that a plaintiff has the right to get his plaint presented by a man in the street. If the person presenting it was not properly authorised, the presentation would be irregular.

45. It is not possible to draw a distinction between one man in the street or the other, so long as he is a stranger to the proceeding. The question whether the presentation of a plaint, application or memo of appeal by an unauthorised person, in the circumstances of a particular case, amounts to an illegality or an irregularity is a different matter.

46. Rule 1 of Order 3 of the Code relates to appearance, application or act by a party-and it is to be noted not by a party in person-and it provides how it has to be made or done, i. e by a party in person, by his recognised agent or by a pleader. This “”provision altogether rules out the suggestion that an appearance, application or act can be made or done by any person other than the party himself or by his recognised agent or pleader. In my opinion, the presentation of a plaint, application or memo of appeal is an act, which should be done by a party, and for that purpose a distinction must be drawn between a party to a proceeding and a stranger.

47. The provisions contained in Order 3, r. l of the Code are of general application, while the provisions contained in Order 33, Rule 8 and Order 44, Rule 1 of the Code, which lay down that an application for permission to sue or appeal as a pauper must be filed by the applicant himself provide an exception to the general rule. An application for permission to sue as a pauper can be filed through a recognised agent only when the applicant is exempted from appearance in Court. In all other cases, the Code allows a party to appear in person or through a recognised agent or pleader. Therefore, I am not prepared to hold that the Legislature did not attach any importance to presentation of plaint, applications or memo of appeal.

48. The act of presentation is said to be a mechanical or ministerial act, inasmuch as it does not require any skill. A plaintiff must institute his suit, a decree-holder must apply for execution of his decree and an appellant must prefer an appeal. Bach of them has to present application or memo of appeal. The matters connected with the drawing up of the plaint, application or memo of appeal have nothing to do with their presentation. Let us take the case of an illiterate decree-holder, who desires to execute his decree. He gets an application for execution written out. He puts his thumb-marks on the application as well as under the verification clause; that is all mechanical. He will not be deemed to have applied for execution unless he presents the application. Similarly, the mere drawing up of plaint or memorandum of appeal will not be sufficient and a Bins will not be deemed to have been instituted or an appeal preferred unless the plaint or memorandum of appeal is duly presented. The law does attach sanctity to formal presentation of these documents, and for that reason it has been clearly laid dawn that a suit should be instituted by presentation of plaint, an appeal should be preferred by means of a memorandum of appeal and an application should be made; and in all cases the existence of a person who is to present these documents is clearly contemplated.

49. The case law which has been cited before as may be divided into three heads : the cases relating to presentation of (1) application for execution, (2) plaint and (3) memo of appeal.

49a. Under the first head, there is one case of our own High Court in Official Receiver, Aligarh v. Hira Lal A.I.R. (22) 1936 All. 727. In that case an application for substitution of names in place of the deceased decree- holder and for execution of decree was made by a pleader the vakalatnama in whose favour was defective. The application was in due course dismissed. When the next application for execution was made it was said to be barred by limitation on the ground that the earlier application was not made in accordance with law and as such it could not save limitation. It was field that the previous application having been filed by an unauthorised person was not in accordance with law. In para. 1 of the judgment it is stated that the previous application was signed by a pleader and was accompanied by a vakalatnama in which the place meant for the pleader was left blank and the vakalatnama did not bear any signature of the pleader showing that he had accepted it. These observations do not necessarily mean that the application had not been signed and verified by the decree-holder or any other person competent to do so. I am inclined to think that the application was dub? signed and verified, and it was presented by a pleader who had also signed the application but who had not been appointed by a duly executed vakalatnama. It is true that in that case the point was not dealt with at length; but the fact remains that an application for execution filed by an unauthorised pleader was held to be not in accordance with law.

50. There are three cases of the Madras High Court reported in Modono Mahono v. Kunja Behari A.I.R. (22) 1935 Mad. 786; Nandamani Anangabhima v. Modono Mohono Deo A.I.R. (24) 1937 Mad. 239 and Appaji Chetti v. Govindasami Reddi A.I.R. (24) 1937 Mad. 760. In these also an application for execution-filed by a pleader, who had not been duly appointed, was held not to have been made in accordance with law. In the case of Nandammi Anangabhima A I.R. (24) 1937 Mad. 239 the facts were almost similar to those of the present case and it was observed:

Order 3, Rule 4 says that no pleader shall act unless he has been appointed by a document in writing. This-means, in our opinion, that if the pleader has not been appointed by a document in writing, he is wanting in capacity or competence to act. It is not a question of a defect in pleader’s authority; it is not a question of an irregularity or even of an illegality in anything that ha does; it is simply a question of want of capacity to act. If a pleader purports to do something which he has no power or capacity to do, we think, it must be clear that what he purports to do can have no legal effect.

It would appear that the presentation of an application by a pleader was treated as an “act” which could not be done by a pleader in the absence of a formal appointment. In the case of Appaji Chetti A.I.R. (24) 1937 Mad. 760 at p. 761 it was observed:

Reading Order 3, Rule 1 and Order 21, Rule 10 together, it is clear that an application, i.e, the moving of the Court to do an act, must be either by the party himself, by a recognised agent or by a pleader.

51. A contrary view was taken by the Calcutta High Court in Jagadeesh Chandra Dhabal Deb v. Satya Kinkar Shahana 63 Cal. 733. In that case there was delay in filing of the vakalatnama and the application for execution, which was filed without a vakalatnama, was held to be in accordance with law. We find no discussion in the judgment and it does not appear to be of any help in deciding the question before us.

52. Under the second head there are two cases of this Court, one reported in Wali Mohammad Khan v. Ishak Ali Khan A.I.R. (18) 1931 ALL. 607 F.B. which has already been cited, and the other Chitta v. Jaffo A.I.R. (18) 1931 All. 767. In the first case the plaint was filed through the next friend of the plaintiff, who was shown as minor. It was subsequently discovered that the plaintiff was not a minor. He had been prosecuting the suit himself and an objection raised to the frame of the suit was overruled by the trial Court. The objection was upheld by the first appellate Court, which dismissed the suit on the ground that the plaint had not been properly presented. This Court held that the plaintiff’s suit could not necessarily be thrown out on the technical ground that the plaint, as originally filed, described him as a minor under the guardianship of his mother and that the defect could and should be cured as it was due to a bona fide mistake. In the second case a plaint presented by a pleader with a defective vakalatnama was held to be a fatal defect.

53. Under the third head, a large number of cases have been cited. I consider it unnecessary to discuss those cases in which presentation of a memorandum of appeal by a pleader, who had not been duly appointed, was held to be a fatal defect. I may, however, notice those cases on which reliance has been placed on behalf of the respondent. One of these cases is reported in Mt. Barkata v. Feroze Khan A.I.R. (31) 1944 Lah. 131. In this case the appellant had engaged Mr. Ghulam Dastgir, a Vakil of Jullundur, on 4th January 1941, and signed a power of attorney in his favour. The memorandum of appeal was prepared and signed by Mr. Ghulam Dastgir; but being busy in one of the Courts at Jullundur he asked Ch. Shah Mohammad Advocate to file the appeal in the District Court of Jullundur on his behalf and that was done. When the appeal came up for final hearing before the District Judge, a preliminary objection was raised on behalf of the respondent that the appeal had not been properly presented and was consequently liable to be dismissed. This objection was upheld and the appeal was dismissed. In appeal the question was raised whether the appeal could have been presented by Ch. Shah Mohammad at the instance of Mr. Ghulam Dastgir, although the former had no power of attorney in his favour, or, in other words, the power to present the appeal could have been verbally delegated by Mr. Ghulam Dastgir. Harries C.J. and Abdur Rahim J. observed at page 132:

One may usefully compare the provisions of Order 33, Rules 3 and 4 and Order 44, Rule 1, Civil P.C., where personal presentation of an application for permission to sue or appeal as a pauper is clearly provided. If, therefore, the Legislature had wanted a particular person to present the petition or appeal, it should have said so specifically, In the absence of any similar provision in regard to the persons who are to present suits or appeals in Court, it does not seem to be incorrect to draw the inference that the Legislature did not insist on the person who was to present these documents to the Court or to an officer appointed by the Court to receive them.

54. I have already pointed out that the provisions contained in Order 33, Br. 3 and i and Order 44, Rule 1, Civil P.C., provide an exception to the general rule contained in Order 3, Rule 1, Civil P.C. The law expressly or impliedly lays down that the applications, plaints and memorandum of appeal should be presented by the party, who seeks relief in Court, and if he is entitled to do so in person he can do so through his recognised agent or pleader.

55. In the case under consideration it was further observed:

The question is whether a plaint or an appeal could have been presented by any person other than the appellant or his recognised agent or pleader? We know for a fact that every day plaints and appeals are being put either in boxes provided for the purpose or before subordinate officers of Courts by pleaders’ clerks or agents who generally do not come within the category of persons mentioned in Order 3. Why should the mechanical act of presenting plaints or appeals to the clerks of Courts or putting them in the boxes provided for that purpose be necessarily done by the party himself or his recognised agent or pleader so long as they are signed and whenever necessary verified by persons. required or authorised to sign or verify them 1…. If this appeal could have been put in the box or laid before the clerk of Court by any person who had been asked to do so by the appellant or her pleader Mr. Ghulam Dastgir or his recognised agent, it could equally have been done by Mr. Shah Mohammad himself not as a pleader but as an individual.

As I have already shown, there is no provision in the Code of Civil Procedure for the putting of the plaints or appeals in the boxes, if any, provided for the purpose. There might be rules in vogue in the Punjab; but our rules do not contain any such provision. The presentation of plaints or appeals cannot be considered a mere mechanical act. It is a formal act by which proceedings are initiated in a Court. In my opinion it is not permissible to hold that the plaints and appeals or applications can be filed by a person other than the party concerned or his recognised agent or pleader,

56. In All India Barai Mahasabha through Kshetra Nath Sen v. Pt. Jangi Lal Chaurasia A.I.R. (28) 1941 Oudh 169 an appeal was presented by a pleader whose certificate Of practice had expired before the date on which the memorandum of appeal was filed. An objection was raised that the appeal had not been properly presented and it was upheld by the first appellate Court. On appeal the decision was confirmed. The learned Judges, who decided that case, observed at p. 171:

Order 8, Rule 1 contains a general provision relating to procedure in Courts and is as much applicable to presentation of suits as to that of appeals and applications for execution. Order 41, Rule 1 is in fact a combination of: the provisions of Section 26 and Order 3, Rule 1. The presentation of every document in Court must therefore he governed by Order 3, Rule 1. The presentation of plaint, memorandum of appeal or an application to the Munsarim of a Court is undoubtedly an act in any Court so that it is imperative that that presentation should be made by the party in person or by his recognised agent or by a pleader.

For the reasons stated by me, I entirely agree with these observations.

57. I have, therefore, come to the conclusion that an application for execution of a decree is required by law to be made by a party, i.e., the decree-holder and, in view of the provisions of Rule 1 of Order 3. Civil P.C., such an application can be made either by the decree-holder himself or by his recognised agent or duly appointed pleader.

58. The application in the present case was made by a pleader who had not been duly appointed; and I now consider whether such a presentation amounts to an illegality or is it merely an irregularity. As far as this point is concerned, I am in general agreement with the view expressed by my learned brother Seth J. and have not much to add.

59. Article 182, Clause 5, Limitation Act, is in these terms:

5. (Where the application next hereinafter 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.

60. An application to be in accordance with law must conform to the provisions contained in Rules 11 to 14 of Order 21, Civil P.C. Under Clause (2) of Rule 17 of Order 21 an application which fulfils the requirements of Rules 11 to 14, as may be applicable to the case, will be treated as “an application in accordance with law.” The improper (presentation of an application, which is otherwise in accordance with law, is, in my opinion, a mere irregularity and not an illegality. If such an application is admitted and registered and order for execution of the decree is made under Clause (4) of Rule 17, the application will be treated as an application made in accordance with law. I need only refer to Wali Mohammad Khan’s case A.I.R. (18) 1981 ALL. 607 F.B.) where the defect in presentation of the plaint was hold to be a mere irregularity.

61. I, therefore, agree that the question referred to us be answered in the negative.