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Veda Gounder and ors. Vs. Arunachalam Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Reported in(1957)2MLJ388
AppellantVeda Gounder and ors.
RespondentArunachalam Chettiar
Cases ReferredKedamath Dutt v. Harra Chtuut Dutt I.L.R.
Excerpt:
- .....and he obtained a decree against katayya goundan. the petitioners in these proceedings are the legal representatives of katayya. in execution of the decree in s.c. no. 844 of 1933, the decree-holder arunachala brought to sale the properties of the judgmeirt-debtor katayya and purchased them himself at the sale held on 9th november, 1942. katayya died on 14th november, 1942, before the sale could be confirmed under order 21, rule 92, civil procedure code. the sale was confirmed on 12th december, 1942, but without notice to the legal representatives of katayya. in s.a. no. 1432 of 1948 to which the petitioners and respondent were parties, this court set aside the confirmation of sale. the judgment has been reported in arunachala chettiar v. vadla kounden : air1952mad871 . the.....
Judgment:

Rajagopalan, J.

1. This application under Section 115, Civil Procedure Code, to revise the judgment of the learned Subordinate Judge of Cuddalore in A.S. No. 208 of 1954 on his file, arises out of proceedings in execution of the decree in S.C. No. 844 of 1933 taken subsequent to the disposal of S.A. No. 1432 of 1948 on 10th December, 1951. The respondent before me, Arunachalam Chettiar, was the plaintiff in S.C. No. 844 of 1933, and he obtained a decree against Katayya Goundan. The petitioners in these proceedings are the legal representatives of Katayya. In execution of the decree in S.C. No. 844 of 1933, the decree-holder Arunachala brought to sale the properties of the judgmeirt-debtor Katayya and purchased them himself at the sale held on 9th November, 1942. Katayya died on 14th November, 1942, before the sale could be confirmed under Order 21, Rule 92, Civil Procedure Code. The sale was confirmed on 12th December, 1942, but without notice to the legal representatives of Katayya. In S.A. No. 1432 of 1948 to which the petitioners and respondent were parties, this Court set aside the confirmation of sale. The judgment has been reported in Arunachala Chettiar v. Vadla Kounden : AIR1952Mad871 . The respondent as the decree-holder-purchaser followed up the litigation that ended with S.A. No. 1432 of 1948 by an application to the executing Court. In effect what he wanted in that application was (1) to bring on record the legal representatives of the judgment-debtor Katayya and (2) to confirm the sale which had been held on 9th November, 1942. The petitioners pleaded that the claim of the' decree-holder-auction-purchaser was barred by limitation. The learned District Munsif allowed the claim ex parte the petitioners, who were the legal representatives of the judgment-debtor, without, however, specifically deciding the question of limitation. On appeal, the learned Subordinate Judge negatived the plea of limitation. That was the only issue pressed in the arguments before me in this application to revise the order of the learned Subordinate Judge.

The decree-holders' application was no doubt registered as E.P. No. 638 of 1952. The learned Counsel, however, did not contest the position, that it was not an ' application for execution ' within the meaning of Article 182 of the Limitation Act. His contention was that Article 181 applied, and that the three-year period had to be computed from 14th November, 1942, the date on which Katayya died, which death gave the decree-holder a right to bring on record the legal representatives of the deceased judgment-debtor, Katayya.

2. Confirmation of sale under Order 21, Rule 92, Civil Procedure Code, does not require an application by the auction-purchaser. Confirmation is a statutory obligation imposed on the Court, if the requirements of Order 21, Rule 92, Civil Procedure Code, are satisfied. Even if the decree-holders as auction-purchaser formally applies for confirmation of the sale, it would not be an application to which Article 181 would apply, and no question of limitation could arise. I did not understand the learned Counsel for the petitioners to challenge this position.

3. What the learned Counsel for the petitioners urged was thai the other relief the respondent (decree-holder-auction-purchaser) asked for, to bring on record the legal representatives of the judgment-debtor Katayya, made it an application to which Article 181 would apply. When the confirmation of sale originally ordered by Court was set aside in S.A. No. 1432 of 1948, the proceedings in E.P. No. 583 of 1942, which was the application for execution of the decree in S.C, No. 844 of 1933, must be regarded as still pending. Confirmation of the sale held on 9th November, 1942, had yet to be ordered under Order 21, Rule 92. As I saldY no question of limitation could rise to decide the question, whether the sale Had to be confirmed. In this case the sale could be confirmed only after notice to the legal representatives of the deceased judgment-debtor. The names of the legal representatives had to be substituted for that of. the judgment-debtor. An application by the decree-holder or auction-purchaser to biing on record the legal representatives of a deceased judgment-debtor, in the course of proceedings in an application for execution validly made, is not itself an application for execution within the scope of Article 182, (See Venkatalakshmamma v. Seshagiri Rao (1930) 60 M.L.J. 628. It is riot an application either withn the scope of Article 181. Even if it could be viewed as an application which the decree-holder or auction-purchaser was under a legal obligation to present and Article 181 is attracted to such an application, the position would be that pointed out in Chalavadi Kotayya v. Poloori Alatnelamma I.L.R.(1907) Mad. 71. The learned Judges observed:

Possibly we are on safer ground if we hold with Wilson, J. in Kedamath Dutt v. Harra Chtuut Dutt I.L.R.(1882) Cal. 420, that so long as proceedings initiated by the decree-holder are pending, his right to apply for their continuance accrues from day to day, that is, on every day on which the Court does not suo motu continue them. The right to apply will then not be barred till three years have elapsed after the proceedings have ceased to be pending.

4. The conclusion of the learned Subordinate Judge was therefore right. This petition fails and is dismissed wih costs.


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