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Kamakshi Ammal and anr. Vs. Arukkani Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 275 of 1952
Judge
Reported inAIR1957Mad440
ActsLimitation Act, 1908 - Schedule - Article 180; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 92(1)
AppellantKamakshi Ammal and anr.
RespondentArukkani Ammal and anr.
Appellant AdvocateK.S. Ramamurthi and ;T.R. Mani, Advs.
Respondent AdvocateM.S. Venkatarama Iyer
DispositionAppeal dismissed
Cases ReferredSornam Pilai v. Thiruvazhiperumal Pillal
Excerpt:
- - we are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15-8-1944. till then the title of the judgment-debtor remained to be finally settled, namely, whether the judgment-debtor was entitled to the entire property unencumbered, or she was entitled only to the equity of redemption at the time of the attachment and the sale......are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15-8-1944. till then the title of the judgment-debtor remained to be finally settled, namely, whether the judgment-debtor was entitled to the entire property unencumbered, or she was entitled only to the equity of redemption at the time of the attachment and the sale.till the rights were finally adjudicated in the course of the execution proceedings, it cannot be predicated what exactly the purchaser is entitled to get by virtue of his purchase. it will be only then that she can file an application for delivery of possession. if it be finally held that she was only entitled to the equity of redemption, she would be entitled only to symbolical possession under.....
Judgment:

Rajamannar, C, J.

1. In our opinion the application of Article 180, Limitation Act, to the facts of this case by the learned Judge was right. Though the third column of Article 180 refers to the date when the sale becomes absolute, that clause must be read not only with the provisions of Order 21, Rule 92 (1), C.. P, Code, but also with the other material sections and Orders of the Code. This view has been authoritatively enunciated by their lordships of the Judicial Committee in Chandramani Shaha v. Ansrjan Bibi .

In the present case there was an application under Order 21, Rule 58, Civil P. C., by Nagammal, who claimed under a possessory mortgage, and that claim was, as a matter of fact, allowed on 14-6-1943. The decree-holder filed a suit to set aside this claim order as she was entitled to do. This suit terminated in a compromise decree only on 15-8-1944 and the application under Order 21, Rule 95, Civil P. C. was made by the decree-holder on 14-8-1947. within three years from the date when the claim suit was disposed of.

We are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15-8-1944. Till then the title of the Judgment-debtor remained to be finally settled, namely, whether the judgment-debtor was entitled to the entire property unencumbered, or she was entitled only to the equity of redemption at the time of the attachment and the sale.

Till the rights were finally adjudicated in the course of the execution proceedings, it cannot be predicated what exactly the purchaser is entitled to get by virtue of his purchase. It will be only then that she can file an application for delivery of possession. If it be finally held that she was only entitled to the equity of redemption, she would be entitled only to symbolical possession under Order 21, Rule 96 C. P. C.. If, on the other hand, the possessory mortgage was found to be sham and nominal and the judgment-debtor was held to be entitled to the entire property, then the decree-holder will be entitled to obtain delivery of possession of the property itself. Till this was determined, it cannot be said that the court auction sale has become absolute.

2. Reliance was placed by Mr. Ramamurthi for the appellant on the decision in Sornam Pilai v. Thiruvazhiperumal Pillal, 51 MLJ 126: AIR 1926 Mad 857 (B). But in that case the Judgment debtor filed a suit, not in continuation of any proceedings in execution, but Independently for setting aside the court sale after declaring that the decree in the suit was not binding on him. Obviously he could not have taken up that stand in the course of execution, because the executing Court could not possibly go behind the decree. That decision has no bearing on the facts of this case.

3. We agree with Ramaswami Gounder J. that the principle of the Privy Council decision above mentioned would govern the present case also. It is only when proceedings started during the course of execution come to a final termination that it can be said that the court sale has become absolute. The appeal is dismissed with costs.


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