(1) A rather interesting point arises on this revision application. The facts briefly are that one Shinde filed a suit against the petitioner in 1932 and he obtained a money decree. In execution of that decree a house belonging to the petitioner was sold on July 1, 1935, and the opponent purchased the house at the auction sale. The opponent's sale was confirmed by the Court on August 31, 1936. The petitioner's son filed a suit, being suit No. 438 of 1938 against the decree-holder and the auction purchaser for a declaration that the decree and the sale of the house were not binding on him as the alienation made by the petitioner was not for legal necessity. In the suit an injunction was issued against the opponent restraining him from taking possession, of the property. On June 30, 1941, the suit was dismissed. There was an appeal to the District Court and the decree of the trial Court was confirmed in 1944. There was a second appeal to this Court and the second appeal was dismissed on January 9, 1948. The auction purchaser presented an application for possession of the property under Order 21, Rule 95, in 1936', being miscellaneous application No. 92 of 1936. The Court in which this application was pending, the Court at Wai, was burnt down and all the records had been destroyed including this application for obtaining possession under Order 21, Rule 95. On December 14, 1944, the auction purchaser applied for reconstruction of his application which had been destroyed. On March 26, 1945, the Court rejected his application and asked him to file a fresh petition. On July 22, 1949, he filed the present application from which this revision application arises. In this application, he prayed for a revival of his application No. 92 of 1936; in the alternative he applied for possession. The trial Court granted the application, and it is from that order that this revision application is preferred.
(2) The contention of Mr. Gokhale is that the Court had no jurisdiction to permit application No. 92 of 1936 to be revived. He says that when the present application was made, viz.. July 22, 1949, the remedy of the auction purchaser had been barred by limitation under Article 180 and that bar could not be removed by the device resorted to by the Court of permitting the application No. 92 of 1936 being revived. One significant fact in this case is that application No. 92 of 1936 was never disposed of by the Court. It is true as Mr. Gokhale points out that under Article 180 only one application can be presented and that application must be presented within three years from the date when the sale becomes absolute. That date is August 31, 1936. Therefore, application No. 92 of 1936 was in time when it was presented. If it had been disposed of, then Mr. Gokhale is right that no fresh application could have been made after that date. Mr. Gokhale says that inasmuch as the Court refused the application of the auction purchaser to reconstruct his application of 1936 the present application in 1949 must be looked upon as a fresh application. I am not disposed to accept that contention. When the Court made the order of March 26, 1945, rejecting the application of the auction purchaser for reconstruction of his old application, the Court did not dispose of application No. 92 of 1936. It merely took the view that it was unnecessary that that application should be reconstructed and suggested to the auction purchaser that he should file a fresh application. In my opinion the application Of July 22, 1949, was a reminder (if I might use the language of the decision to which I shall pra-sently refer) to the Court that application No. 92 of 1936 remained undisposed of and should be decided.
(3) Now, there are two decisions which on facts are much more favourable to Mr. Gokhale than the facts in this case. One is a Calcutta decision in -- 'Jateendrachandra Bandopadhyay v. Rebateemohan Das', : AIR1933Cal333 . In that case a mortgage decree was obtained and the wife of the mortgagor filed a suit for a declaration that the mortgaged property could not be sold on the allegation that the mortgagor had no title to the property. Pending the suit the mortgaged property was sold and the sale was confirmed. Then the decree-holder purchasers applied for delivery of possession and that application was dismissed for default. The suit instituted by the wife of the mortgagor was decreed, but the decree was reversed in appeal, and after the dismissal of the appeal the auction purchasers again applied to the Court for delivery of possession. Therefore, there we have a case where an application for possession was actually dismissed and a fresh application was presented, and yet the Court took the view that the original application which was dismissed for default was not finally disposed of but remained pending in the eye of the law, and the fresh application for delivery of possession should therefore be treated as one for continuance or revival of the former, and the reason which led the Calcutta High Court to this conclusion was that the cause of action of the auction purchaser was suspended during the period when the suit filed by the mortgagor's wife remained undisposed of and the cause of action was revived when the appellate Court ultimately dismissed her suit.
(4) The Madras High Court in a full bench in -- 'Abdul Azim Sahib v. Chokkan Chettiar', AIR 1935 Mad 803 considered a case where an application for possession by the auction purchaser was dismissed on the ground of obstruction offered to him. Thereafter a fresh application was presented which was beyond time, and the Madras High Court took the view that there had never been any objection by the judgment-debtor to possession being given to the auction purchaser, nor was there any adverse order against the auction purchaser, and therefore there never was any valid disposal of the application, and under these circumstances the subsequent application must be looked upon as a reminder to the Court to fake up the matter again.
(5) Therefore, in my opinion, the learned Judge below was right in looking upon the application of July 22, 1949, not as a fresh application but as a revival of the application made by the auction purchaser in 1936 and which application had never been disposed of by the Court.
(6) Mr. Gokhale then contends that the learned Judge was wrong in making the order on this application without giving an opportunity to his client to argue the matter on merits. Mr. Gokhale says that the only order the Court could have made was to revive Application No. 92 of 1936 and this application No. 92 of 1936 should have been heard on merits. I see no force in this contention. Mr. Gokhale's client is the judgment-debtor. The application of the auction purchaser is to obtain possession from the judgment-debtor, and under Order 21, Rule 95, if the property is in possession of the judgment-debtor or of some person on his behalf or of some person claiming under the title created by the judgment-debtor, the Court is empowered to give possession to the auction purchaser and to remove any obstruction caused by the judgment-debtor or anyone on his behalf. This is not a case where a stranger is in possession where certain inquiry may be necessary. It seems that although the sale was confirmed in 1938, and we are in 1951, the ingenuity of Mr. Gokhale's client is not yet by any means at an end, and if this matter was again sent down to the executing Court, I am sure some very ingenious defences would be put forward as to why the auction purchaser should not be given possession. I am not disposed to encourage any further continuation of this unduly long litigation.
(7) The result is that the application fails. Rule discharged with costs.
(8) Rule discharged.