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Perumal and ors. Vs. Ramachandra Padayachi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1982)1MLJ65
AppellantPerumal and ors.
RespondentRamachandra Padayachi and ors.
Cases ReferredMuthial Chettiar v. Krishnaswani. Gounder and Ors L.P.A. No.
Excerpt:
- - in this case admittedly, the application now in question has been filed by the decree-holder purchaser well within this period of 12 years. notwithstanding these important changes in the statute-law learned counsel appearing for the judgment-debtors in these cases urged that the authoritative decisions rendered by this court under the indian limitation act, 1908, would still hold good, even under the present dispensation. they recommended that it had better be given up. in view of the radical alteration in the law brought about by the limitation act of 1963, under which alone the present case falls to be decided, lam satisfied that it is unnecessary to enter into the kind of discussion which had taken up the time and the attention of courts in the cases cited by learned counsel for..........decree, if article 136 is the appropriate article, admittedly the present application is within time. article 136 provides that an application for executing a decree of an order of a civil court must be filed within 12 years from the date when the decree or order became executable. in this case admittedly, the application now in question has been filed by the decree-holder purchaser well within this period of 12 years. there is therefore, no question of bar of limitation. this is the line of argument pursued by the learned advocate-general.3. mr. vanchinathan, learned counsel appearing for the judgment-debtor in c.r.p. no. 347of 1977 and mr. subramaniam appearing for the other judgment-debtor in c.r.p. no.709 of 1980, submitted that the contentions put forward on behalf of the.....
Judgment:

V. Balasubrahmanyan, J.

1. These two civil revision petitions although heard at an interval of a week or two in between are disposed of by this common judgment, considering that both of them raise an identical point of limitation. Eachisa case where the holder of a money decree purchases a judgment-debtor's property in execution sale. After confirmation of the sale in his favour the decree-holder-purchaser applies to the executing Court for delivery. The application is filed within a period of one year from the date when the sale is made absolute. This is the prescribed period for an application of this kind under Article 134 of the Schedule to the Limitation Act, 1963. On this application by the decree-holder-purchaser, the Court orders delivery. But, for some reason or other, the purchaser does not succeed in obtaining actual delivery. The delivery warrant is returned unexecuted. In the one case, the judgment-debtor makes himself scarce, and the property is found under lock and key, and the purchaser does not move the Court for an order for breaking open the lock for gaining entry. In the other case an obstructor stands in the way of the delivery warrant being executed. Whichever be the cause, the application of the decree-holder purchaser gets ultimately dismissed by the executing Court. Subsequently, the purchaser moves the Court once again for delivery. This time the way is clear for obtaining delivery. In the one case the property is apparently no longer under lock and key. In the other case, the obstructor's obstruction is by then removed out of the way. Meanwhile, however, more than a year has passed since the confirmation of the sale. It is this time lag which has been taken advantage of by the judgment-debtor in each case. His contention is that the present application for delivery filed by the decree-holder-purchaser is barred by limitation. He relies on Article 134 of the Schedule to the Limitation Act, 1963. This plea in bar has been upheld by the Court below in the first of the cases now before me. The Court which dealt with the other case, however, took a different view, holding that the subsequent application by the decree-holder-purchaser is not barred by limitation although it was filed after the expiry of one year from the date when the sale in has favour became absolute. The question for my consideration in these two revisions is which is the correct view about limitation

2. The learned Advocate-General put the case for the purchaser very simply. Much the same argument was addressed by Mr.R.S. Venkatachari for the purchaser in the other case. The argument was based on what was common ground between the parties In each case an application for delivery was admittedly filed in time by the decree-holder-purchaser, that is to say, within one year from the date when the sale became a bsoute. Admittedly, again, on that application the executing Court passed an order for delivery. Subsequently, no doubt, that application was dismissed, but the dismissal of that application did not alter the fact that the Court had in fact ordered delivery at an earlier stage. It follows that having obtained an order for delivery, the subsequent a application filed by the purchaser cannot be regarded as an application for an identical relief, namely for an order for deli, very, for the simple reason that the Court had already passed an order for delivery. In these events, the application of Article 134 is out of the question. That Article only prescribes the time-limit for an application for delivery by a purchaser of an immovable property at an execution sale. It does not deal with an application filed by the purchaser to effectuate an order of delivery passed by the executing Court. In other words, the purchaser's application, which is now in question, is not an application for delivery but an application for executing the order of delivery already passed by the executing Court. In this view, Article 134 is not the governing Article. The pertinent provision is to be found in Article 136. That Article prescribes the period of limitation for an application to execute either a decree or an order passed by a civil Court. An order for delivery passed by an executing Court is itself an executable order in the same way as a decree for possession passed by a Court in a suit for possession is an executable decree, If Article 136 is the appropriate Article, admittedly the present application is within time. Article 136 provides that an application for executing a decree of an order of a civil Court must be filed within 12 years from the date when the decree or order became executable. In this case admittedly, the application now in question has been filed by the decree-holder purchaser well within this period of 12 years. There is therefore, no question of bar of limitation. This is the line of argument pursued by the learned Advocate-General.

3. Mr. Vanchinathan, learned counsel appearing for the judgment-debtor in C.R.P. No. 347of 1977 and Mr. Subramaniam appearing for the other judgment-debtor in C.R.P. No.709 of 1980, Submitted that the contentions put forward on behalf of the decree-holder-purchaser are novel and opposed to the traditional manner in which this question has been dealt with and disposed of by our Courts in the past. They cited, as illustrative cases, two Division Bench rulings of this Court in Sree Rajah Vadrecu Vistvasundara Rao Bahadur v. Vannan Paidigadu (1926) 50 M.L.J. 72 : : (1926)50MLJ72 : 23 LW 472 : A.I.R. 1926 Mad. 385 and Ramakrishnayya v. Venkatasubba Rao : AIR1954Mad831 and also a decision of a single Judge in Nalluru Kottaya v. Narayana : AIR1944Mad60 These cases, it may be observed, dealt with a typical problem of a decree-holder-auction-purchaser obtaining an order for delivery on an application filed by him within time, on the basis of which, however, he was unable to obtain actual physical possession of the property for some reason or other with treresult that he is found approaching the Court once again for that purpose. How the Courts have approached the problem in all the above decisions is to draw a distinction between two kinds of cases. In one kind of case, the decree-holder-purchaser is thwarted in his attempt to obtain actual physical delivery, owing to reasons beyond his control, or by obstruction caused either by the judgment debtor or by a third party. In the other kind of case, the Court having once passed an order for delivery in favorur of the purchaser, nevertheless ultimately dismisses his application because of laches on the part of the auction-purchaser. The Courts have held that in the former case a subsequent application for delivery although as a matter of computation it is beyond the time prescribed for an application for delivery, must yet be regarded as a revivor or a continuation of the earlier application for delivery, which ex hypothesis filed within time. In the other kind of case, the Courts have expressed the view that the subsequent application must be dismissed since the purchaser is entirely to be blamed for not pursuing the order for delivery in his earlier application.

4. The question of limitation has been discussed in all the earlier cases in the books in the context of the relevant provisions of the Indian Limitation Act, 1908. Article 182 of the first Schedule to that Act corresponds to Article 134 of the schedule to the present Limitation Act, 1963, excepting for the difference that instead of one year which is now the governing period of limitation, the Legislature had prescribed three years under the earlier statute. There is another and more fundamental change in the two Acts as respects the period of limitation prescribed for executing a decree or order of a civil Court. In the earlier Limitation Act, 1908 a distinction was drawn between decrees and orders of a Chartered High Court, on the one hand, and decrees and orders of other civil Courts on the other. Article 194 of the Indian Limitation Act, 1908 which prescribed the period of limitation for executing decrees and orders of civil Courts other than Chartered High Courts provided for a period of three years as a period of limitation for execution applications. But, the starting point of limitation under that Article wag subject to a complicated set of rules, laid down in the third column of the Schedule. The Article was also subject to the provisions of Section 48, Civil Procedure Code - which, briefly stated, provided an over-all time-limit upto 12 years for any application in execution. The Limitation Act of 1963 had done way with the distinction between a decree or order of the Chartered High Court and a decree or order of other Courts in the matter of execution. It had also repealed Section 43 of the Code, prescribing a. uniform period of 12 years as the period of limitation for all execution petitions. Notwithstanding these important changes in the statute-law learned Counsel appearing for the judgment-debtors in these cases urged that the authoritative decisions rendered by this Court under the Indian Limitation Act, 1908, would still hold good, even under the present dispensation.

5. I cannot accept the view that the substantial changes made in the law of limitation by the repealing and re-enacting legislation of 1963, must be ignored and the Court must proceed to apply the decisions rendered under the repealed enactment without question even in situations arising under the law as it stands re-enacted. The Indian Limitation Act of 1908 was repealed and a new statute of limitation was brought in U being on the basis of the recommendations contained in the third Report of the Law Commission. The Law Commission inter alia, expressed the view that Article 182 of the Indian Limitation Act, 1908, was a fruitful source of litigation. They recommended that it had better be given up. They also felt that there should be a single and simple period of limitation for execution of decrees and orders of all civil Courts without any distinction whatever between one kind of Court and another. At the same time, again on the basis of the recommendation's of the Law Commission, the period of three years prescribed under the Act of 1908 for an application for delivery by a purchaser in an execution-sale was to be reduced to one year. One of the pre-occupations of Courts administering the earlier law of limitation relating to execution was to fird out whether any given application in executior was a step-in-aid of execution, or was a continuation or was a revivor of an earlier execution application. With the complete abandonment of both sector 48 of tie Civil Procedure Code and of the provisions contained in Article 182 of the Act of 1608, the Courts of the present day, I believe, are relieved of these old-time obsessiors. After the repeal and re-enactment of the law of limitation under the Limitation Act of 1963, the task of the Courts is to apply Article 136 to all applications to execute a decree or order of a civil Court, untrammelled by the previous case-law on the subject having a bearing on the since repealed provisiors oi tre Indian Limitation Act, 1908. I, therefore, accept the line of approach argued for by the learned Advocate General as the only proper way of applying the law of limitation to cases arising under the present Act,

6. In both the cases under revision the central fact remains that the decree-holder-auction-purchaser did file his application for delivery in due time within a period of one year from the date when the sale became absolute. Not only that, the Court on that application actually made an order for delivery. The purpose of the application was, therefore, served with the passing of the order for delivery. What remained thereafter was only the ministerial act of putting into effect the said order for delivery. A situation of this kind had its parallel in proceedings in execution of a decree passed in a suit for possession. Where a decree for possession is passed, that decree is an executable decree. Likewise, an order for delivery passed in favour of an a action purchaser is an executable order. What the decree-holder-purchaser in each of these cases asks for is not an order for delivery, which ex hypothesi, he had already obtained in the earlier application. He has approached the Court with the present application only for executing the earlier order for delivery passed by that very executing Court. In this sense, therefore, Article 134 cannot have any application. For, that Article only applies to an application for delivery. It does not apply when that application had already been ordered and something has to be done with that order and pursuant to that order. In this view, Article 136 is the proper provision to be applied, because that Article applies not only to a decree, but also to an order of a Court, which is executable as an order. There can be no doubt that an order for delivery passed by an execution Court in favour of an a action purchaser is executable in the same way as a decree for possession is executable. It may be that in the very application filed by an auction-purchaser for delivery, and as a follow-up proceeding, the warrant of delivery may be successfully executed. But, the law of limitation does not prevent an independent and substantive application being filed to execute the order for delivery passed by an executing Court. There is nothing in Article 136 of the Schedule to the Limitation Act, 1963, which excludes such executable orders from execution.

7. I am therefore, of the view that in both these cases the subsequent application was filed within time, since both of them were filed within a period of 12 years from the respective dates when the order for delivery was made. Both the applications must be regardedas applications to execute the earlier order of delivery duly passed by the executing Court on applications which were themselves filed within the period limited by Article 132.

8. In this view based on the construction and application of the clear words of Articles 132 and 134 of the Limitation Act, 1963, it would be unnecessary to enter in to a further discussion to find out whether the ultimate dismissal of the earlier application for delivery was owing to the default of the decree-holder purchaser, or whether it was due to circumstances beyond his control. That kind of discussion world rave beer opposite under the law as it stood under the by gore limitation statute of 19v8. In view of the radical alteration in the law brought about by the Limitation Act of 1963, under which alone the present case falls to be decided, lam satisfied that it is unnecessary to enter into the kind of discussion which had taken up the time and the attention of Courts in the cases cited by learned Counsel for the judgment-debtors.

9. Mr. Vanchina than referred me to a decision in Nandur Subbayya v. Raja Vtnkataramayya Apppa Rao (1918) 7 L.W. 16 He said that much the same argument as was addressed by the learned Advocate-General in this case was put forward in that case, only to be turned down by Oldfield, J., who gave the leading judgment in that case. It is true that Oldfield, J., rejected the idea that an order for delivery passed by an executing Court on the application of a purchaser in execution sale can itself be regarded as an executable order. But, a perusal of his judgment, especially the concluding paragraph therein, shows that the learned Judge had particularly addressed his mind to the case of a decree-holder-auction-purchaser, rather than that of a third party auction-purchaser. Cases have since held that the position of the two kinds of Court-auction-purchasers is the same in so far a s the bar of limitation for an application for delivery is concerned. Oldfield, J., seems to have entertained tie idea that the three year period under Article 182 of the old Limitation Act must be sufficient to enable any decree-holder -auction-purchaser to apply for delivery and put into effect the order of deliver y, where a stranger to the decree or a third party auction-purchaser would be required to obtain delivery of possession within the larger period of 12 years. The learned Judge also seems to have relied principally on the content of Order 21, Rule 95, Civil Procedure Code, to hold that an application for delivery being an application in execution cannot at the same time ask for execution of an order in execution. Apart from this last conundrum the entire discussion of the matter by tie learned Judge was coloured by the earlier decisions in the law reports, based on the degree of diligence exercised by the auction-purchaser in seeking to obtain delivery of possession of the property. The learred Judge expressed the view that if the dismissa 1 of the earlier application was not due to his fault or to his own laches, then a subsequent application by the auction-purchaser must be regarded as being in continuation of, or as a revivor of, the earlier application. I have shown earlier how all these old-world ideas which have their origin in the then existing provisions of Article 182 of the Limitation Act, 1908, particulary Clause 5 in the third column of the first Schedule, are no longer appropriate under the present law.

10. I may observe also, in passing, that in Nandur Subbayya v. Raja Venkataramayya Appa Rad. Abdul Rahim, J., had expressed the view that an order for delivery passed by an executing Court in favour of an auction-purchaser marks the end of that application and what follows the order of delivery is merely the ministerial act of putting that order into effect. The learned Judge would seem to have regarded an order for delivery as itself capable of execution as an executable order. But, be did not pursue this line of reasoning the whole hog, to its logical conclusion, but preferred to decide the case on hand before him on the basis that the subsequent application filed by the auction-purchaser in that case was but a continuation of the earlier application.

11. It may be observed that a subsequent Division Bench of this Court in Sree Rajah Vadrevu Viswasundara Rao Bahadur v. Vannan Paidigadu : (1926)50MLJ72 , preferred to follow the line of tie reasoning of Oldfield, J., rather than that of, Abdul Rahim, J. But, I think with respect that the line of reasoning adopted in that case is not appropriate to the entirely different statutory milieu brought about by Articles 134 and 136 of the present Limitation Act, 1963. I am satisfied that on the plain reading and on the clear juxtaposition of Articles 134 and 135 of the schedule to the present Limitation Act, an order for delivery passed by an executing Court in favour of a Court auction-purchaser is executable as an order within the time prescribed by Article 136 of the schedule to the Act. In the two cases under revision, the decree-holder-purchaser, while filing his subsequent application had asked for an order for delivery, but since the order for delivery had already been made, these applications must, in my view, be dealt with as applications for excutirg the order for delivery already passed in their favour. In this view, the applications must be regarded as having been filed within time under Article 136. I accordingly disagree with the view of the court below in C.R.P. No.347 of 1977 that the present application was time-barred. For the same reason in C.R.P. No.709 of 1980. I uphold the decision of the Court below holding that the subsequent application filed by the decree-holder-purchaser for delivery is not time-barred.

12. I am glad to be able to arrive at the conclusion that in both the cases the application for delivery must be held to have been filed within time. It would have been monstrous, if the law were understood to be different driving the auction-purchasers without a remedy in the world for delivery of possession. It is patent that if their applications were to be dismissed as time-barred they would have to resign themselves to a double jeopardy, while the judgment-debtor sits pretty on the property not any the worse either for the decree or for the execution against him. A Court of justice if it can help it, must avoid a blatant result of this kind. As decree-holders who have obtained leave to bid and set-off and who have purchased the property in Court-auction in execution of their decrees, the moment the sales were confirmed in their favour, by the same token their decrees also stood, and satisfaction would have been entered then and there. This recording of satisfaction in each case would have become final. If in such a situation, their applications for delivery were regarded as time-barred then they would not only lose the right to execute their decrees for the simple reason that they had already been satisfied, they would also be losing the right to recover possession of the property which they had purchased in execution of the very decrees and which had been recorded as fully satisfied by the very act of their puichase.

13. It has been held time and again that a decree-holder-purchaser is no better than a third party auction-purchaser. In Explanation 2(b) to Section 47, Civil Procedure Code as amended by Amendment Act CIV of 1976, all questions relating to the delivery of possession of such property to a purchaser at a sale in execution of a decree sha11 be deemed to be questions relating to the execution discharge or satisfaction, of a decree within the meaning of Section 47(1). Section 47(1) enacts that all questions arising between the parties to the suit relating to the execution discharge or satisfaction of the decree shall be determined by the Court executing the decree, and not by a separate suit. These provisions show that an auction-purchaser, whether he is a decree-holder or not, is inextricably forced to agitate his right sand pursue his remedies only in execution proceedings. A Division Bench of this Court in an unreported decision in Muthial Chettiar v. Krishnaswani. Gounder and Ors L.P.A. No. 19 of 1976 while confirming the decision of Mohan, J., had held that an auction-purchaser seeking to obtain delivery of possession of the property purchased DV him in an execution sale must seek his remedy for delivery only before the executing Court which held the sale and not by way of a separate suit for recovery of possession. This shows that if an auction-purchaser loses his remedy of delivery on a point of limitation he loses it irretrievably. And where the auction-purchaser is the decree holder himself he suffers a double lossasi have earlier observed. That the law relating to limitation as I have understood it on the basis of my construction of the present Limitation Act of 1963, does not drive the auction-purchaser to this extremity of distinction is another ground which must be in favour of the view I have expressed.

14. In the result, C.R.P. No.347 of 1977 is allowed. The order of Court below in E.A. No. 175 of 1975 is set aside and the Court is directed to deal with the same on merits. C.R.P. No. 709ofl980 is dismissed and the order passed by the Sub-Court, Thanjavur in E.A. No. 390 of 1979 is confirmed. Having regard to the peculiar circumstances of both these cases, there will be no order as to costs in either of them.


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