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Vydialinga Swamigal Vs. Karuppanna Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad718; (1942)2MLJ355
AppellantVydialinga Swamigal
RespondentKaruppanna Goundan and ors.
Excerpt:
- - with regard to this item delivery was not given as the purchaser apprehended that the defendant was likely to obstruct and he endorsed on the warrant that he would take possession later on with police help......of the sale. the petitioner (i.e., the present appellant) stated that this petition must be considered to be a continuation of the prior petition referred to above and that therefore it was in time. both the courts found against him and dismissed the petition. this was not a case in which there was any default on the part of the auction-purchaser. from the order passed on e.a. no. 1081 of 1936 it is clear that as the purchaser apprehended obstruction from the defendant, he wanted time to take possession with necessary police help. it was the duty of the court to have posted the petition to some other date to enable the petitioner to get the necessary police help. instead, the petition was dismissed recording the delivery of the other items. since this was not a case in which the.....
Judgment:

Kuppuswami Ayyar, J.

1. The appellant had purchased same properties in execution of a decree and he filed a petition under Order 21, rule 95, Civil Procedure Code, for delivery of possession of the same. There were a number of items and all of them except one item S. No. 187-A of Punjai Lakkapuram village were delivered. With regard to this item delivery was not given as the purchaser apprehended that the defendant was likely to obstruct and he endorsed on the warrant that he would take possession later on with police help. This was recorded by the Court on 21st September, 1936 and the petition was dismissed. This petition out of which this second appeal arises was filed on 26th August, 1939 three years after the date of the confirmation of the sale. The petitioner (i.e., the present appellant) stated that this petition must be considered to be a continuation of the prior petition referred to above and that therefore it was in time. Both the Courts found against him and dismissed the petition. This was not a case in which there was any default on the part of the auction-purchaser. From the order passed on E.A. No. 1081 of 1936 it is clear that as the purchaser apprehended obstruction from the defendant, he wanted time to take possession with necessary police help. It was the duty of the Court to have posted the petition to some other date to enable the petitioner to get the necessary police help. Instead, the petition was dismissed recording the delivery of the other items. Since this was not a case in which the party was at fault, the dismissal of the petition must be considered to be an order adjourning the petition sine die till the petitioner takes steps. In C.M.A. No. 520 of 1940, His Lordship Justice Burn held in a very nearly similar case that the later petition must be considered to be a continuation or remainder of a previous application for the purposes of limitation.

2. In the result, the decrees of the Courts below are set aside and the petition is remanded to the original Court for being proceeded with on the basis that the petition is only a continuation of the previous application. The respondents will pay the appellant's costs in this and in the lower Courts.

3. Leave refused.


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