1. An application, E.A. No. 145 of 1938, was filed by the respondent, the auction purchaser, on 2nd February, 1938, for the delivery of the present petitioner 's property which had been sold to him in execution of a decree against the present 'petitioner. Delivery was ordered; but on obstruction by the petitioner the application for delivery was struck off. The respondent took seme steps in 1940 but they came to nothing; and on 11th February, 1941, he filed the petition with which we are directly concerned, E.A. No. 143 of 1941, another application for delivery, praying at the same time for removal of the obstruction that had been offered by the judgment-debtor. Prima facie this application was badly out of time. An application for removal of obstruction has to be filed, according to Article 167 of the Limitation Act, within thirty days from the date of obstruction; and an application for delivery has to be made within three years of the final order confirming the sale. The learned District Munsiff therefore dismissed the application as being barred by time. The learned Subordinate Judge relying on two decisions of this Court, Subramania v. Angappa Asari : AIR1930Mad328 , and Abdul Aziz v. Chokkan Chettiar : (1935)69MLJ821 , held that the present application was but a continuation of E.A. No. 145 of 1938. He accordingly allowed the appeal and ordered the District Munsiff to dispose of E.A. No. 143 of 1941 on its merits, treating it as a continuation of E, A. No. 145 of 1938.
2. I have had to consider this petition as fully as if it were an appeal; because the order of the lower Appellate Court would have to be set aside in any event as being one without jurisdiction. The dispute was between the auction purchaser and the judgment-debtor; and as the auction purchaser represented the interests of the judgment-debtor, the dispute was between the judgment-debtor and one claiming through him and was not, therefore, one that fell within the scope of Section 47, Civil Procedure Code. No appeal therefore lay from the order of the District Munsiff. Unfortunately, this objection was not taken in the lower Court.
3. Of the two decisions, quoted by the learned Subordinate Judge, Abdul Aziz v. Chokkan Chettiar : (1935)69MLJ821 , does not help us very much; because in that case the Court itself failed to do an act which it was bound to do; and despite the fact that with regard to a number of items of land there was no objection by the judgment-debtor, it failed to give delivery; and so the learned Judges held that it was an improper disposal of the application for delivery and must therefore be regarded as still pending. Subramania v. Angappa Asari : AIR1930Mad328 , dealt with the point raised here, and Pandalai, J., thought that the petition for delivery had obviously been closed for statistical purposes, although he did not give any reasons for his conclusion. This matter has, however, been clearly covered by other decisions of this Court. Sri Raja Vadrevu Viswasundara Rao Bahadur v. Vannam Paidi Gadu (1925) 50 M.L.J. 72 does not deal precisely with the point which is under consideration here; but the learned Judges lay down certain principles which do apply to this case. They held that if there has been a default in prosecution of the application for delivery on account of some fault on the part of the auction purchaser, then the dismissal of his application is a final order and definitely disposes of his applications. If, however, the petition has been closed and there has been no default by the auction-purchaser--and the learned Judges specifically referred to cases where there has not been delivery because of obstruction by the judgment-debtor--then that petition for delivery must be deemed to be pending They referred to an earlier case dealt with by Abdur Rahim and Oldfield, JJ. Those two learned Judges differed; and Devadoss and Waller, JJ., preferred to follow the opinion of Oldfield, J., which laid down the principle enunciated above. Pakenham Walsh, J, considered a case precisely like the present in Appavoo Nainar v. Lakshmana Reddi : AIR1933Mad745 and he based his decision on the remarks of Devadoss and Waller, JJ., in Sri Raja Vadrevu Viswasundara Rao Bahadur v. Vannam Paidi Gadu (1925) 50 M.L.J. 72 and of Oldfield, J., in Nandur Snbbayya v. Sri Venkataramayya Apparao Bahadur 1918 M.W.N. 214. The learned advocate for the petitioner contends that there was a default on the part of the decree-holder inasmuch as he failed to present an application under Order 21, Rule 97, 'Civil-Procedure Code to have the obstruction removed and that therefore the principle laid down by Devadoss and Waller, JJ., in Sri Raja Vadrevu Viswasundara Rao Bahadur v. Vunnam Paidi Gadu (1925) 50 M.L.J. 72 does not apply. It has however always been held by this Court from Muttia v. Appaswami I.L.R.(1890) Mad. 504. onwards that a decree-holder is not bound to apply for removal of obstruction under Order 21, Rule 97, Civil Procedure Code and may put in a fresh application for delivery. Moreover, the decisions above referred to clearly indicate that the failure to apply for removal of obstruction is not a default of the auction purchaser which would necessitate the dismissal of his application for delivery, except perhaps in a case where he was ordered by the Court to put in an application under Order 21, Rule 97, Civil Procedure Code and he failed to do so.
4. As the order of the lower Court was without jurisdiction I cannot merely dismiss this petition; but in view of the fact that the conclusion come to by the lower appellate Court was right, the order passed by the lower appellate Court will be adopted as the order of this Court in revision. As the respondent adopted a wrong procedure, by preferring an appeal to the lower appellate Court instead of coming here in revision, it will not be just to order the petitioner to pay his costs. Both parties will therefore bear their own costs in this Court as well as in the lower appellate Court.