Abdur Rahim, J.
1. The decree-holder having purchased the property in dispute at an execution sale, which was confirmed on 16th January 1911, applied for delivery of possession by a petition presented on the 16th April 1915. If nothing further had happened, there could be no doubt that his application was out of time, applying to it Article 180 which was for the first time enacted in the new Limitation Act and lays down a period of three years for an application by a purchaser of immoveable property at a sale in execution of a decree for delivery of possession, reckoning time from the date when the sale becomes absolute. Previously, however, to the present application the respondent had made a similar application first on the 9th November 1912 and another on the 4th December 1912, and both these petitions were dismissed by one order on the 10th December 1912, on the ground that the purchaser was unable to identify the land. A third application was put in on the 4th July 1913. On that an order was passed, 'Deliver', that is, 'deliver possession of the land', on the 7th July 1913. Then I take it that the order of the Court to deliver possession was entrusted to the amin or some other proper officer of the Court to give effect to it. On the 30th July 1913 the order passed on the petition was: 'No one to take delivery. V.M.'s report. Petition dismissed.' The contention of the respondents is that having' obtained an order from the Court for delivery of possession on the 7th July 1913, they are entitled either under Article 182 or Article 181 to come within three years of that order and to ask that it be given effect to.
2. There can be no doubt that it must be taken as settled, so far as this Court is concerned, on the authority of Sultan Sahib Maraknyar v. Chidambaram Chettiar 1 Ind. Cas. 998 which has been followed in Ramaswami Aiyar v. Abdul Aziz Saib 3 L.W. 191 by Sadasiva Aiyar and Moore, JJ., that an application by a decree-holder purchaser for possession of the property bought by him is not an application for execution of the decree within the meaning of Article 182 and that that Article does not apply to such oases. Article 181 will apply, if Article 180 does not. Article 180 will dertainly apply, unless it can be held that the order of Court directing delivery of possession, dated the 7th July 1913, on the petition of 4th July 1913 still stands. If it does, there would be no meaning in the Court making a farther order for delivery of possession and all that would remain to be done would be the carrying out of that order by an officer of the Court In my opinion this would be no refinement of construction; on the other hand, I should think it will be quite in consonance with what must often happen, namely, that the Court, when an application is made to it under Article 180, makes an order directing delivery of possession, but the giving effect to that order is left to an officer of the Court and the order may not be carried out until long afterwards through no default of the purchaser. Once an order for deliver of possession is made by the Court, in my opinion, the purpose of Article 18 J is satisfied and the carrying out, of that order would no longer be governed by that, Article. The question to be determined, therefore, is whether the order of Court, dated the 7th July 1913, still holds good or must be taken to be cancelled by the order of the 30th July 1913.
3. It will be no use to review the eases as to the effect of an order of dismissal or striking off an application, which are numerous on the question as to whether such an order puts an end to an attachment or not. The question is, as stated in Subba Chariar v. Muthuveeram Pillai 24 M.L.J. 543, one of intention to be determined upon the circumstances of each case. In the present case there is nothing to show that the purchaser was heard on the 30th July 1913 or that he had any opportunity of showing cause why the order for delivery of possession, dated the 7th July 1913, should not be dismissed. The Court cannot cancel an order made in execution or otherwise in favour of a party without giving him an opportunity to be heard. I should, therefore, infer that the order 'petition dismissed. 30th July 1913' was meant for statistical purposes. In that view of the fact, the present application would merely be a continuation of the proceedings on the petition of the 4th July 1913. The present petition, which is made under Order XXI, Rule 95, no doubt does not say in so many words that what is sought is the carrying out of the order of the 7th July 1913, but simply asks for delivery of possession; but there can be no doubt that we are required to look at the substance of the proceedings and not to decide upon the mere form of the application.
4. Much stress has been laid on the fact that the purchaser was at default in not being present to take delivery of the property when the officer of the Court went there between the 7th July and 30th July 1913, for the purpose of ascertaining which Article of the limitation applies, Article 180 or 181. I do not find that these Articles make any reference to the conduct of the applicant. Nor can it be said that the decided cases lay this down as the criterion, though undoubtedly the fact whether the suspension of execution was due to any default or negligence of the decree holder or to circumstances over which he had no control has been sometimes taken into consideration in ascertaining what was intended by the order dismissing or striking off a petition for execution. In this case, even assuming that it was a default on the part of the purchaser in not being present when the amin went there to carry out the order of the Court, though he seems to have encountered difficulties in identifying the properties soil to him owing to a change in the survey numbers, I do not feel obliged to infer firm this single fact that the Court, on the 30th July 1913, intended to rescind its own order of the 7th July 1913 without even giving an opportunity to the purchaser of being heard. I do not think that there is any question involved of any disciplinary measure and I agree with the lower Appellate Court' that the present application is in continuation of, or a revival of, the proceedings under the petition of the 4th July 1913.
5. For these reasons, I am unable to agree with the judgment of my learned brother which I have had the advantage of heading-and I would dismiss the appeal with costs.
6. The facts in this appeal lie in a small compass. The respondents are purchasers at Court auction, whose right to possession of the property purchased accrued on 16th January 1911, when the sale was confirmed. They applied for delivery on 9th November 1912, 6th December 1912 and 4th July 1913, but their applications were dispose of without their obtaining it. On 16th April 1915 they applied again in the application now under disposal; and the question, which the lower Appellate Court answered in the affirmative, is whether it is in time. Prima facie it is not. For, as is conceded here, Article 180, Schedule I, Act IX of 1938, is applicable, and it allows a period of only three years from the date when the sale becomes absolute. The contention relied on is that the present application is either a continuation of those already made or is subsidiary or incidental to the first of them, being for execution of the general order for delivery passed on it, and is, therefore, within time with reference to Article 181.
7. It is clear that the contention cannot be sustained in either form unless some proceeding initiated, by one or other of the previous applications is still pending. For, if there is per pending proceeding, there is nothing which the, present application can continues or to which it can be subsidiary's or incidental. To ascertain whether proceedings are pending, the fact that the order in them has at any stage been worded as one of dismissal is not decisive. For that order will be treated as merely suspensory, if the circumstances of the case justify the presumption that such was the Court's real intention. Thahur Prasad v. Abdul Hasan (1900) A.W.N. 178 and Subba Chariar v. Muthuveeram Pillai 14 Ind. Cas. 264. Here the record shows, and it is not disputed, that the orders of dismissal were passed on the applications of 9th November 1912 and 4th December 1912, because the property to be delivered could not be identified, and on the petition of 4th July 1913, because no one came on behalf of the purchasers to take delivery; and it is not alleged and no reason has been shown for not acting on the ordinary presumption that the Court proceeded regularly and passed these orders on an adjourned date or after, notice. There was no question on any of these occasions of any obstacle to the grant of relief beyond respondents' control or of anything except their default: and the facts in no way resembled those in Jit Mal v. Jwala Prasad (1899) A.W.N. 6 relied on by the respondents, where the obstacle to execution was the evasion of the judgment-debtor. It is argued that the decree-holders' responsibility for the cessation of the proceeding is immaterial. But the only case cited in support of this view, Qamar-ud-din Ahmad v. Jawahir Lal 2 A.L.J. 397 : 32 I.A. 102 : 8 Sar. P.C.J. 810, is really against it. For we are not concerned with the finding, reached in circumstances other than those before us, that the decree-holder then in question had been guilty of no laches, but with the Court's treatment as material of the fact that 'the application under consideration was in substance, as well as in form, an application to revive and carry through a pending execution, suspended by no act or default of the decree-holder.' On the other hand it has been recognised in a loner series of cases [Thakur Prasad v. Abdul Hasan (1900) A.W.N. 178, already referred to] that 'a decree-holder's proceedings can only be held to be legally continued when the interruption to them was not occasioned by any fault of his own, but either by the successful objection of a judgment debtor, or a third party or by some obstacle interposed by the Court,' this distinction having been drawn lately in this presidency in Yellampalle Venkatappa v. Matam Nanjappa 4 L.W. 112 : (1917) M.W.N. 139. No such objection or obstacle and nothing except the decree-holder's default is in question in the present case, and I, therefore, hold that the order on each of their first three applications in each case terminated the proceedings and that the present application cannot be regarded as a continuation of, or subsidiary or incidental to, any of the previous ones.
8. To do justice, however, to respondents' contention in its second form it must be stated more fully. It is that the first or in fact any one of their first three applications should be regarded as generally for delivery and the order on it generally as granting it; an4 that Article 180 applies only to such an application, not to subsequent applications such as that now before us, which are, it is contended, made for execution of the general order already obtained and are covered by Article 181. Suppa Reddiar v. Avudi Ammal 28 M. 50 and Subba Chariar v. Muthuveeram Pillai 14 Ind. Cas. 264. The objection to this is that an application made like those of respondents under Order XXI, Rule 95, is not in fact of that character and does not result, except by a refinement of construction, which can serve to purpose except to authorise protraction of proceedings, in a general order such as that alleged, requiring further execution before relief can be given. No authority has been shown for treating the order obtainable under Order XXI, Rule 95, as a general order to be worked out in subsequent execution or as including constructively both such a general order and also, on the assumption (a gratuitous one) that execution of that order has been applied for simultaneously, an order executing it: and the form provided for orders under the Rule Form No. 39, Appendix E, Schedule I, Civil Procedure Code, expresses either of these views of the proceedings. In these circumstances I dissent from them.
9. The result is that respondents' application is, in my opinion, out of time; and I have the less difficulty in holding that it is so, because the contrary conclusion would, if the purchaser's right could be kept alive by applications under Article 181, entail an unlimited extension of the time within which it could be asserted. Such extension would be anomalous in any case; and its necessity in that of a stranger purchaser, who can enforce his right by suit for 12 years after his purchase with reference to Article 138, Schedule I, is not apparent, whilst in that of a decree-bolder purchaser, such as respondents, who will ordinarily be acquainted with the property and the title to it before the sale, the period of three years should be sufficient. I would allow the appeal and dismiss the petition with costs throughout.
10. In the result the appeal is dismissed with costs.