Pakenham Walsh, J.
1. The respondent is a judgment-creditor who purchased in Court sale certain properties which he had brought to sale under his decree. His sale was confirmed on 30th August, 1921 and he got possession of some of the properties. On a delivery petition filed by him on 22nd September, 1921. Item 6, however, a house, was not delivered. On 23rd September, 1924, he put in another delivery petition stating that the house in question and the garden attached thereto could not be delivered to him in the previous delivery order as the said house was locked and the house and garden were in the possession of the judgment-debtors. The order passed on this was 'Deliver 9-12-1924' and is dated 13th November, 1924.
2. On 11th March, 1926, he put in another petition wherein he stated that even though order for delivery was sent, he could not get possession from the defendants as the said house was under lock and key and was still under lock and key. This execution petition was dismissed as time-barred on the authority of Sree Rajah Vadrevu Viswasundara Rao v. Vannam Paidigadu (1925) 50 M.L.J. 72 which held that Article 180 of the Limitation Act applied to such a case and that the application being made more than three years after the date of sale was time-barred. The present application was filed on 3rd March, 1927. It was allowed by the learned District Munsif who relied on Kannan v. Avvulla Haji (1926) I.L.R. 50 Mad. 403 : 50 M.L.J. 1 and on Varadaraja Mudali v. Murugesam Pillai I.L.R.(1915) 39 Mad. 923 : (1915) 30 M.L.J. 460. The order was confirmed in appeal by the learned Subordinate Judge and against this the present appeal is filed by the legal representative of one of the judgment-debtors. Two questions arise for consideration:
(1) Is the present application per se barred by limitation?
(2) If it is not per se barred, is it barred on the principle of 'res judicata' by the decision on the execution petition presented on 11th March, 1926?
3. I will deal with the latter point first. The learned Subordinate Judge held that it was not barred on the principle of res judicata because notice had not been sent to the judgment-debtors and also because the former order had proceeded on the view of the law that then existed as to procedure and that it is laid down in Varadaraja Mudali v. Murugesam Pillai I.L.R.(1915) 39 Mad. 923 : 30 M.L.J. 460 that a decision especially on procedure cannot be treated as res judicata when the law relating to procedure is held to be different.
4. For the first position he quotes no authority and it is clearly not sustainable. The want of notice to the judgment-debtors will not make the dismissal of the execution petition put in by the judgment-creditor any the less res judicata against the latter vide Vyapuri Goundan v. Chidambara Mudaliar I.L.R.(1912) 37 Mad. 314 : 24 Mad. 26 followed in Ramalinga Rowthan v. Sheik Ibrahim Sahib (1920) 12 L.W. 34 and Lalumia v. Hannissa 1926 M.W.N. 317. With regard to the second position Varadaraja Mudali v. Murugesam Pillai I.L.R.(1915) 39 Mad. 923 : (1915) 30 M.L.J. 460 has not been quoted accurately. What was laid down there was that a decision especially on procedure cannot be treated as res judicata when the procedure itself is changed by the Statute Law, It is not contended that there has been any change in the Statute Law here. The learned Subordinate Judge while he mentions that notice was not served on the judgment-debtor does not say that he relies on this and he rests his decision on the ground, which has also been taken before me, that the petitioner is entitled to ignore the petition of 11th March, 1926, as the original delivery petitions had not been disposed of.
5. The final order on the first petition of 22nd September, 1921, was simply 'closed' and on the petition of 23rd September, 1924 'deliver 9-12-1924' after which there is no further order on it. There seems to be very little authority on the question as to what is the position of a decree-holder who purchases in Court auction and being obstructed by the judgment-debtor asks that the obstruction should be removed, gets an order of delivery, but leaves the matter there.
6. The decision in Kannan v. Avvulla Haji I.L.R.(1926) 59 Mad. 403 : 52 M.L.J. 1 which was given on 14th September, 1926, does not appear to me easy to reconcile with the decision in Sree Rajah Vadrevu Viswasundara Rao Bahadur v. Vannam Paidigadu (1925) 50 M.L.J. 72 which was passed on 24th July, 1925 and the latter decision is not referred to in the former. Each is by a Bench of two Judges of this Court. In the former case it was held that an application for delivery of possession by a decree-holder who had purchased in Court auction was a step-in-aid of execution of his decree, and was so even though not made in the course of a pending execution. In Sree Rajah Vadrevu Viswasundara Rao Bahadur v. Vannam Paidigadu (1925) 50 M.L.J. 52 it was held that an application for delivery of possession of immovable property purchased by a person at a sale held in execution of a decree falls under Article 180 of the Limitation Act, and must be made within three years of the date on which the sale becomes absolute. The fact that during that period an order for delivery had been passed but delivery not effected owing to his, the decree-holder's, own default does not extend the period of limitation. It is not clear whether in this case the auction-purchaser was the decree-holder or not, and the obstructor the judgment-debtor. If the petitioner was not the decree-holder the decision may be consistent with Kannan v. Avvulla Haji I.L.R.(1926) 59 Mad. 403 : 52 M.L.J. 1 but it would not be applicable to the present case. If he was the decree-holder then I must follow the later decision and hold that such application for delivery is a step-in-aid of execution of the decree and therefore comes under Article 182 of the Limitation Act.
7. As I said above the question of the position of a purchasing decree-holder who is obstructed by the judgment-debtor and gets an order of delivery which is not further executed seems to be almost bare of authority.
8. We may however look at the class of cases where the decree-holder cannot proceed with his execution because of a stay imposed by Court. The view of the Full Bench of Allahabad is that he has three years after the removal of the stay to renew his petition after which it would be barred under Article 181, Limitation Act - vide Chhattar Singh v. Kamal Singh I.L.R.(1926) 49 All. 726 (F.B.). But a case reported of our High Court in Pattannayya v. Pattayya (1925) 50 M.L.J. 215 seems to hold that there is no limitation in such cases, as the original petition must be disposed of and till it is disposed of remains pending. It was held in that case that an application of 1915 was not barred in 1921 and that the application made in the latter year was neither a further application for execution nor an application to revive that of 1915 but was only intended to call the attention of the executing Court to the fact that the application of 1915 had to be proceeded with and that the application of 1921 was therefore not barred. This being the position of our High Court it would follow that if the delivery petition of 1st October, 1921 or 23rd September, 1924, had been stayed by a Court order the present petition would not be time-barred. Is this principle to be applied where there has been obstruction by the judgment-debtor which the purchasing decree-holder has made an attempt to remove but has not persisted in such attempts
9. On that point I can find no authority. There are however certain remarks in Sree Rajah Vadrevu Viswasundara Rao Bahadur v. Vannam Paidigadu (1925) 50 M.L.J. 72 which though they are obiter are some guide. In that case the application was held to be time-barred not having been made within three years of the confirmation of the sale but the learned Judges say at page 74:
Where the Court is unable to give effect to its order by reason of the absence of the petitioner who is bound to be present in order to take delivery or owing to causes over which he has no control it is not the duty of the Court to give notice to show cause why the petition should not be dismissed. It would be different if the delivery was obstructed by the judgment-debtor. If owing to anything that the judgment-debtor does or owing to causes which are beyond the control of the auction-purchaser the delivery is not effected it may be said that the order for delivery remains in force and a subsequent application to execute that order is a valid application even if that application is made more than three years after the date of the sale being made absolute.
10. They agreed however with Oldfield, J., in Nandur Subbayya v. Sri Rajah Venkataramayya Appa Rao Bahadur 1918 M.W.N. 214 that Article 180 was the proper article applicable to a case where the decree-holder was at fault. Now in the present case it may be noticed that the alleged obstruction has never been denied in any counter put in by the judgment-debtor. I am of opinion that the order 'closed ' was not a proper disposal of the petition of 22nd September, 1921 and all the subsequent petitions for delivery must be taken to be simply reminders to the Court that this petition was pending. As regards the dismissal of the petition of 11th March, 1926, as time-barred, that order would be simply the dismissal of a misconceived petition which, regarded as a fresh petition for execution was out of time. Vide Ramchandra v. Shriniwas I.L.R.(1921) 46 Bom. 467. It has frequently been held that orders such as 'closed' and 'recorded' made for statistical purposes are not disposals of execution applications. It may be that the Court could have called on the decree-holder to take further steps to get the obstruction removed on pain of having his execution petition dismissed, and if he had failed to do so the dismissal of the execution petition might have been proper. It is unnecessary to express any opinion on this point because the Court did not take any such step.
11. On the whole it appears to-me that where the judgment-debtor has by his obstruction prevented a delivery ordered by the Court being carried into effect he must take the consequences of his action and that, unless possibly, as mentioned above, the Court calls on the decree-holder to take further action to enforce the delivery order, he cannot say that the petitioner must move in the matter and not himself. It is objected that in the present petition the petitioner has asked that the order dismissing the petition, dated 11th March, 1926, as time-barred should be set aside. I do not think it material that petitioner may have misconceived his remedy in this respect and it is also to be noted that in para. 3(5) he urges that there is no limitation for that petition which is not an incorrect way of putting it if that petition is regarded as a reminder to the Court that the first execution petition is pending.
12. In my opinion then the answer to the two questions propounded at the beginning of this order are:
1. The present petition should be regarded as a reminder to the Court to proceed with the original petition on which delivery was ordered and which was never properly disposed of. It is not therefore time-barred and according to the ruling in Pattannayya v. Pattayya (1925) 50 M.L.J. 215 no time runs against the presentation of such a reminder petition.
2. It is not barred by res judicata because the order dismissing the petition filed on 11th March, 1926, was only valid in the light of this being a fresh execution petition. As a fresh execution petition it was misconceived and its dismissal will not prevent this reminder petition being put into the Court to proceed with the original petition which remains undisposed of.
13. In the result the appeal fails and is dismissed with costs.