1. The only point involved in this appeal is whether Article 180 is applicable to an application by the purchaser of immoveable property at a sale in execution of a decree for delivery of possession, or Article 181.
2. The appellant purchased property in execution of a decree and the sale was confirmed on 29th June 1918. The application out of which the present appeal arises was made on 30th July 1921. Both the District Munsif and the Subordinate Judge have held that the appellant's application is barred by limitation under Article 180 of the Indian Limitation Act. It is contended by Mr. Kameswara Rao before us that an application for execution was made in June 1920 and the District Munsif ordered that the property sold should be delivered to the purchaser and that this order was not carried out by the Court and, therefore, should be considered to be in force. He urges that when a Court passes an order for delivery it is the duty of the Court to see that the delivery takes place and he relies upon the wording of Order XXI, Rule 95 and contends that the words 'the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf in possession of the property' lay upon the Court the duty to make an order for delivery on an application by the purchaser. The Court is not bound to see that delivery is actually effected, for delivery may not take place notwithstanding the order of the Court by reason of a third person being in possession or by some resistance offered by a person entitled to object to delivery, or the delivery cannot take place owing to misdescription or wrong description or owing to the absence of the purchaser or his man. In this case the application of June 1920 was dismissed as the warrant of delivery was returned unexecuted as there was no one to take delivery. The contention that the order for delivery is in force till actual delivery takes place is not supported by the wording of Order XXI, Rule 95, or by any decided case. The contention that when an order for delivery is made that order is to remain in force till actual delivery takes place is tantamount to saying that an order for delivery is a decree which can be kept alive by periodical applications. To uphold this contention would be to apply Article 182 to applications for delivery. Article 180 is clear in its terms. It gives three years' time for making an application for delivery of possession from the date when the tale becomes absolute. When there is a specific provision applicable to the case, if is not proper to overlook that Article and apply Article 181 of the Limitation Act which is a residuary Article applicable to cases not provided for elsewhere in the First Schedule to the Limitation Act or by Section 48 of the C.P.C.
3. There is only one reported decision of this Court on this point Nandur Subbayya v. Venkatramayya Apparao Bahadur L.W. 16 and the learned Judges, who decided that case took different views on the question. Abdur Rahim, J., held that in a case like this Article 181 is the proper Article to apply. His view is that when an application for delivery of possession is made and the Court passes an order for delivery, that order should be considered to be in force till actual delivery is effected and he holds that if the Court wanted to dismiss the application it should give notice to the applicant to show cause why the order for delivery of possession should not be dismissed and that if no notice is given to the auction-purchaser to show cause why his application should not be dismissed the dismissal, should be considered as shelving the petition for statistical purposes. Where the Court is unable to give effect to its order by reason of the absence of the petitioner, who is bound to be present in order to take delivery, or owing to causes over which he has control, it is not the duty of the Court to give notice to show cause why the petition should not be dismissed. It would be different if the delivery was obstructed by the judgment-debtor; or if owing to anything that the judgment-debtor does or owing to causes which are beyond the control of the auction-purchaser, the delivery is not effected, it may be said that the order for delivery remains in force and a subsequent application to execute that order is a valid application even if that application maybe more than three years after the date of the sale being made absolute. Oldfield, J., took the view that Article 180 was the proper Article applicable to the case. He observes at page 218 Page of M.W.N. [Ed.], 'it has been recognised in a long series of cases; Thakur Prasad v. Abdul Hassan A.W.N. (1900) 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.'' With very great respect we are unable to follow the reasoning of Abdur Rahim, J., and we respectfully adopt the reasoning of Oldfield, J. Oldfield, J., and Bakewell, J., held in a similar case that Article 180 was the proper Article applicable to the case C.M.S.A. No. 75 of 1916. The decision in Jit Mal v. Jwala Prasad 9 Ind. Dec. has no application to the present case. In that case the arrest of the judgment-debtor could not be effected as he concealed himself. It was held that the application was pending as the arrest could not be effected owing to the conduct of the judgment-debtor. But where owing to the default or laches of the auction-purchaser, delivery of possession could not be effected, the Court would be justified in dismissing the application for delivery of possession even though an order for delivery has been made. Article 180 was enacted in the Act of 1908 and the Article is clear in its terms. There is no warrant for extending the period of limitation by applying Article 181 to a case where owing to the auction purchaser's default delivery could not be effected. We hold that Article 180 of the Limitation Act has been properly, applied to the facts of the case and we dismiss this appeal with costs.
4. The point involved in C.M.S.A. No. 130 of 1923 is the same and the judgment in this appeal governs that case also. C.M.S.A. No. 130 is dismissed with costs for the reasons given in our judgment in C.M.S.A. No. 55 of 1923. C.M.S.A. No. 70 of 1923 is dismissed without costs.