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Sahu Deoki Nandan Vs. Narendra Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 299 of 1969
Judge
Reported inAIR1974All144
ActsLimitation Act, 1963 - Sections 15(1) - Schedule - Article 134
AppellantSahu Deoki Nandan
RespondentNarendra Kumar and anr.
Appellant AdvocateGyan Prakash, Adv.
Respondent AdvocateV.K. Khanna, ;Rishi Ram, ;Girdhar Malviya, ;Shanti Bhushan, Advs.
DispositionAppeal dismissed
Excerpt:
.....- period during which he was restrained to be excluded - held, harmonious interpretation to be given to sections and articles of the act. - - if an express order or injunction is produced by a party that clearly meets the requirements of section 15.'17. in the instant case, there was a clear order made by a civil court in a suit in which narendra kumar was a party, that narendra kumar was not to take delivery of possession of the property in dispute which he had purchased in the auction sale,,till the disposal of the suit. this would certainly be placing an auction purchaser like narendra kumar in a very awkward position because in one case he is liable for contempt of court and in the other he is liable to lose his property......which reads as below:'section 15 (1). in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.' 12. learned counsel for the appellant contended that section 15 of the limitation act would apply only in those cases where a suit or an application for execution of a decree had been stayed.....
Judgment:

K.N. Srivastava, J.

1. This is an Execution First Appeal arising out of the following facts:Sahu Deoki Nandan, judgment-debtor objector, was the owner of a certain premises situated in the city of Bijnor. This house was sold on 5-3-1955 in execution of a decree in Suit No. 41 of 1952 and was purchased by Narendra Kumar, respondent. There were other incumbrances on this property. The purchase was made subject to the prior incumbrances.

2. Sahu Deoki Nandan had mortgaged this house with the District Co-operative Bank Limited, Bijnor, for a certain amount. The Bank filed Suit No. 4 of 1955 for recovery of the amount due under the mortgage. The mortgage money had not been paid by Narendra Kumar with the result that the house was sold in execution of this decree on 3-12-1968 for Rs. 68,000/-. The Bank withdrew the amount due to it out of this money and Rs. 37,000/-, the balance, remained in court custody.

3. Meanwhile, five other creditors of Sahu Deoki Nandan filed an application for ratable distribution. We are not concerned with that application in this appeal.

4. The sons of Sahu Deoki Nandan filed a suit, No. 7 of 1955, with the allegation that the property was joint family property and was not liable to be sold in execution of any decree which had been obtained against Sahu Deoki Nandan in his personal capacity. The mortgage suit by the District Co-operative Bank had been filed before the house was purchased by Narendra Kumar in the auction. Therefore, an application was made by the Bank for impleading Narendra Kumar as a defendant in Suit No. 4 of 1955. This application was resisted by Narendra Kumar on the ground that the sale in his favour had not been confirmed and the sale had taken place during the pendency of the suit, and, therefore, he should not be made a party in the suit. This objection of Narendra Kumar prevailed and the application of the Bank for impleading Narendra Kumar as a party was rejected.

5. In the suit, a son of Sahu Deoki Nandan had filed an application for staying the confirmation of the sale in favour of Narendra Kumar. The stay order was passed on 17-6-1955. On 19-10-1955 the stay order was modified and Narendra Kumar, who was a party in Suit No. 4 of 1955, was restrained from taking possession of the house during the pendency of the suit. The sale was thus confirmed in favour of Narendra Kumar on 7-11-1955.

6. Sahu Deoki Nandan made an application in the execution court that he was entitled to the amount of Rs. 37,00p/-, which was in the custody of the court, while Narendra Kumar made an application that by the auction sale he had become the owner of the property and, as such, he was entitled to the amount of Rs. 37,000/-, which was lying in the custody of the Court. The application of Sahu Deoki Nandan did not find favour with the executing court and it was dismissed. It was ordered that Narendra Kumar was entitled to receive that money. It is against this order that Sahu Deoki Nandan has filed this Execution First Appeal.

7. The first contention of the learned counsel for the appellant was that in Suit No. 4 of 1955, which the Bank had filed against appellant on the basis of the mortgage, Narendra Kumar had given a statement that he had no concern with the property in dispute and, as such, he should not be made a party to the suit. The objection which Narendra Kumar made to the application of the Bank for impleading him as a party has been read over to me. Narendra Kumar did not say that he had no concern with the property. All that he stated was that the sale in his favour had not been confirmed, and that the sale had taken place during the pendency of the suit and, there-fore, he was not a necessary party to the mortgage decree and, as such, he should not be impleaded. This objection of Narendra Kumar found favour with the trial court and the application of the Bank to implead Narendra Kumar as defendant was rejected. From a perusal of the objection of Narendra Kumar I find it as a fact that the above contention of the appellant has no force in it. Nowhere even by implication Narendra Kumar mentioned that he had no concern with the property in dispute. The learned counsel for the appellant contended that in view of the admission of Narendra Kumar, he was now estopped from claiming the property as his. As Narendra Kumar never made such a statement that he had no concern with the property therefore, the question of estoppel against him does not arise.

8. The other argument of the learned counsel for the appellant was that the sale was confirmed on 7-11-1955 and, as provided under Article 134 of the Limitation Act, 1963, the auction purchaser had to make an application for delivery of possession within one year from the date of the confirmation of the sale and because no such application was made by the auction purchaser, therefore, his right as auction purchaser was extinguished and Sahu Deoki Nandan became the owner of the property by adverse possession. Article 134 of the Limitation Act, 1963, reads as below:

134.For delivery of possession by a purchaser of immovable property at a sate Inexecution of a decree*

One year

When the sale becomes absolute.

9. Had the matter been so simple, there would have been no difficulty in holding that Narendra Kumar did not make any application for delivery of possession within a year from 7-11-1955 and, therefore, his claim to take the property as auction purchaser was barred by time. But, I find, that in Suit No. 7 of 1955, which the son of Sahu Deoki Nandan had filed, the Court had passed an order injuncting Narendra Kumar not to take delivery of possession of the disputed property which was sold to him, till the decision of the suit. That suit was pending when these applications for the refund of the money were made.

10. The question would, therefore, arise as to whether Narendra Kumar could take delivery of possession in view of the specific order of a Civil Court that he was not to take delivery of the property purchased by him in an auction in execution of the decree. Had he disobeyed this order, he would have been guilty of disobeying the order of the Court, and, therefore, so long as this injunction order against him was subsisting, certainly he had no right to move an application for delivery of possession of the property purchased by him.

11. In this connection, reference can be made to Section 15 of the Limitation Act, which reads as below:

'Section 15 (1). In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.'

12. Learned counsel for the appellant contended that Section 15 of the Limitation Act would apply only in those cases where a suit or an application for execution of a decree had been stayed by injunction or order of a Court. He contended that the application for delivery of possession by an auction purchaser could not come within the definition of 'application for execution of the decree' and, therefore, Section 15 would not come to the aid of Narendra Kumar. I have heard the learned counsel for the appellant at length on this point. An application for execution of a decree is made by a decree-holder and all other applications which are made by the decree-holder or the auction purchaser or the representatives of the decreeholder or even by a judgment debtor are all applications made in the execution proceedings. The question, therefore, would arise that does Section 15 of the Limitation Act apply only to the decree-holder or his assignee who makes the execution application or even to the auction purchaser. There can be no doubt whatsoever that an auction purchaser has to make an application for delivery of possession in the same execution proceeding which started on the basis of the execution application made by the decree-holder. He has no right to make such an application separately in a separate proceeding. It has, therefore, to be decided that the expression 'in execution of the decree' is to be interpreted narrowly so as to include only a decree-holder or his assignee or in a wide sense so as to include other persons who are also entitled to take one or the other advantage in the execution proceedings when limitation is prescribed to their applications also.

13. The learned counsel for the appellant relied on a Division Bench decision of the Calcutta High Court in Jatendra Chandra Bandopadhya v. Rebateemohan Das : AIR1935Cal333 . In this case the following observation was made by the Bench:

'Section 15. Limitation Act, however, refers to a suit or an application for the execution of a decree. The application for delivery of possession by the auctioneer purchasers may be treated as an application in execution proceeding but it cannot be treated as an application for execution.'

14. Certainly it is an application made in an execution proceedings, and there is no dispute that this cannot be treated as an application for execution. A perusal of Schedule I of the Limitation Act makes it abundantly clear that Articles 113 to 135 of the Limitation Act relate to the limitation prescribed for making applications in specific cases. In this very category Article 134 of the Limitation Act also comes. Therefore, an auction purchaser has to make an application for delivery of possession within one year and this application has to be made in the execution proceedings itself. A harmonious interpretation has to be given to the sections and articles of the Limitation Act, and, therefore, the words 'application for execution' used in Section 15 of the Limitation Act cannot be narrowly interpreted so as to include only a decree-holder and his assignee, otherwise an auction purchaser, for whom limitation for making an application for delivery of possession is prescribed as one year, would not be entitled to the benefit of Section 15 of the Limitation Act. In my opinion this could never have been the intention of the legislature to put such a narrow interpretation to Section 15 of the Limitation Act

15. It would be worthwhile to mention here that the Division Bench of the Calcutta High Court did not give any reason as to why Section 15 of the Limitation Act would not apply to an auction purchaser.

16. The other case which was relied upon by the learned counsel for the appellant was a Supreme Court decision in Siraj-ul-Haq Khan v. Sunni Central Board of Waqf, U.P. : [1959]1SCR1287 . Their Lordships of the Supreme Court observed as below:

'It is plain that, for excluding time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or aft injunction which stays the institution of the suit. And so in such cases falling under Section 15, the party instituting the suit would by such institution be in contempt of Court. If an express order or injunction is produced by a party that clearly meets the requirements of Section 15.'

17. In the instant case, there was a clear order made by a Civil Court in a suit in which Narendra Kumar was a party, that Narendra Kumar was not to take delivery of possession of the property in dispute which he had purchased in the auction sale,, till the disposal of the suit. Had Narendra Kumar made such an application, he would certainly have been guilty of contempt of Court, and if he did not make such an application, would the argument be available to the other party that he did not make an application within a year of the date of confirmation of the sale, as provided under Article 134 of the Limitation Act, and, therefore, he is not entitled to take delivery of posseesion and his claim over the property is barred by time? This would certainly be placing an auction purchaser like Narendra Kumar in a very awkward position because in one case he is liable for contempt of Court and in the other he is liable to lose his property. Every wrong has a remedy. Any auction purchaser put in this position is entitled to his remedy in a Court of law, and in this view of the matter also, I am of the opinion that Section 15 of the Limitation Act fully applies to this case.

18. The other case cited by the learned counsel for the appellant was Deutsche Asiatesche Bank v. Hira Lal Burdhan and Sons, (AIR 1919 Cal 706). This case doee not help the appellant at all. In this reported case the right to sue was not suspended by an order or injunction by a Civil Court but due to the declaration of war, and, therefore. Section 15 of the Limitation Act was rightly not applied to the facts of this imported case.

19. For the reasons given above, I am, therefore, of the opinion that both the contentions of the learned counsel for the appellant have no force in them. The appeal is, therefore, dismissed with costs.


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