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Subramania Chetty and ors. Vs. Angappa Asari - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in118Ind.Cas.769
AppellantSubramania Chetty and ors.
RespondentAngappa Asari
Excerpt:
limitation act (ix of 1908), schedule i, article 181 - execution applications for delivery of possession by auction-purchaser--orders passed but not carried out--petitions treated for statistical purposes as closed--later application beyond time and filed as continuation of closed petition, whether barred. - .....judgment-debtor by the plea of limitation under article 180 of the limitation act. the first application for possession was dated 15th november, 1919. an order was made for giving possession on that application but not carried out owing to the obstruction of the daughter-in-law of the judgment-debtor and so the application was treated as 'closed'. the second application dated 15th december, 1919, was for removal of obstruction and possession but removal of obstruction could not be ordered or possession given on account of the pendency of obstruction proceedings followed by a suit filed by the obstructor during which the purchaser was prevented by an injunction and by reason of a stay order from the high court in civil revision petition no. 1919 filed by the judgment-debtors against.....
Judgment:

Pandalai, J.

1. This second appeal is from an order to deliver property to an auction-purchaser in execution. The sale took place in 1917. Its confirmation was opposed but it was confirmed on 5th March, 1919 by the Appellate Court, From that time onward for a period of more than 1G years the purchaser has been attempting to get possession. In the fourth and last application dated the 28th September, 1921 he was met by one of the three sons of the deceased judgment-debtor by the plea of limitation under Article 180 of the Limitation Act. The first application for possession was dated 15th November, 1919. An order was made for giving possession on that application but not carried out owing to the obstruction of the daughter-in-law of the judgment-debtor and so the application was treated as 'closed'. The second application dated 15th December, 1919, was for removal of obstruction and possession but removal of obstruction could not be ordered or possession given on account of the pendency of obstruction proceedings followed by a suit filed by the obstructor during which the purchaser was prevented by an injunction and by reason of a stay order from the High Court in Civil Revision Petition No. 1919 filed by the judgment-debtors against the order confirming sale. Before those proceedings were closed, however, the application was itself treated as 'closed'. The third application was made on 12th October, 1921, after the termination on 31st August, 1922, of the obstructor's suit O.S. No. 287 of 1920. This application was returned to the applicant's Vakil for representation with the certificate of sale in one week. This was not done as the Vakil who got back this application was in custody for a long time afterwards. On his release that petition was represented by another Vakil on 20th July, 1923, with the sale' certificate on behalf of the purchaser with another application to excuse the delay in representation caused by the above circumstance. The Munsif by his order dated 24th November, 1923, declined to excuse the delay but allowed in the meanwhile a fourth application dated 28th September, 1923, to be filed as a continuation of the first and second application and it is this which the judgment debtor's son now says is time-barred as it was filed more than three years after the confirmation of the sale.

2. The District Munsif held that in the circumstances stated above the first application can be treated as 'closed' only for statistical purposes as the order for delivery made on that application was not carried out merely on account of the resistance of third parties and that the application, dated 28th September, 1923, was a continuation of the previous proceedings. He, therefore, ordered delivery of possession to be given on1st March, 1924. One of the three sons of the judgment-debtor appealed to the District Judge. He held that the application of 28th September, 1923, should not be treated as a revival of the earlier proceedings because the third application dated 12th October, 1921, must be held to have been dismissed as it was not represented in time and the application to excuse delay was refused. But the learned Judge upheld a preliminary objection taken on behalf of the auction-purchaser that the appeal to him was incompetent as the question in dispute did not arise between opposite parties or their representatives and , therefore, do not fall within Section 47 of the Civil Procedure Code and, that, therefore, no appeal lay. The judgment-debtor's son has filed the second appeal.

3. Two questions were argued (1) that the view of the lower Appellate Court that no appeal lay to him was incorrect and (2) that the application for possession was barred under Article 180. I do not propose to deal with the first contention as in my opinion there was more that on application for possession made within three years of the confirmation of the sale pending undisposed of before the Court sufficient to support the District Munsif's order. The first three applications were clearly made within three years of the date of the confirmation of the sale. On the first application an order for possession had been made but not carried out owing to no fault of the purchaser. To close such an application because the order made could not be immediately carried out on account of obstruction only means that the postponed not that the application is dismissed. Treating such a matter as 'closed' can only be for statistical purposes. Similarly the second application for removal of obstruction and for delivery of possession could not be dealt with finally as the obstructor's suit intervened and an order could only be passed after it terminated and injunction against the purchaser was dissolved. To 'close' such an application on account of the pendency of other proceedings before the termination of which final orders could not be passed has no other meaning that that consideration of the matter is postponed and pending such consideration the application is for statistical purposes closed. The fact that the third application was not represented in time and that the Court refused to excuse the delay, in representation of that petition does not mean that it was dealing with the previous two application which were judicially undisposed of, because even before 24th November, 1923, the date of the order refusing to excuse the delay in representation of the third petition, the present or fourth application to continue the proceedings under the first two application had already been filed on 28th September, 1920, and it was disposed of only on 2nd February, 1924, the date of the order now under appeal, I cannot agree with the learned Judge when he says that the first application was not merely closed for statistical purposes. He has said nothing about the second application. It is well recognized that closing or striking off on statistical or administrative grounds applications for judicial relief do not dispose of them judicially and that for purposes of limitation they must be regarded as still pending.

4. The appellant has absolutely no merits and the second appeal is dismissed with costs.


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