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Kasi Padayachi Vs. Muthukumaraswami Naidu - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1980)1MLJ259
AppellantKasi Padayachi
RespondentMuthukumaraswami Naidu
Cases ReferredMohamed Amin Sahib v. Tiruvannamalai Cooperative Society
Excerpt:
- .....to the indian limitation act, 1963, providing for a period of 12 years for the execution of the decree of civil court have been made applicable mutatis mutandis in respect of the execution of decisions, awards and orders passed under the act and the recovery under section 91 of any amount due under a decree or order of a civil court. rule 67 makes elaborate provision for the procedure in the attachment and sale of immovable property for the realisation of moneys due under an award or decree. under rule 69(v), the registrar is empowered on the confirmation of any such sale to grant a sale certificate under his seal and signature to the purchaser. rule 70 specifically provides that when a purchaser of property is resisted and prevented by any person other than a person not being the.....
Judgment:
ORDER

V. Ratnam, J.

1. The short question that arises for consideration in the civil revision petition is whether the application for delivery of possession filed by the petitioner is in time.

2. The respondent herein admittedly had borrowed moneys from E. 2616, T. Palayam Rural Co-operative Agricultural Credit Society. Inasmuch as the amounts were not paid, proceedings were initiated against the respondent and an award in No. 265 of 1969-70 and 1721 of 1969-70 was made. Execution proceedings were resorted to as the amounts remained unpaid. It is thereafter the properties of the respondent were brought to sale for the realisation of the moneys due from him. The sale was conducted by the Co-operative Sub-Registrar (Execution and Liquidation) and Sale Officer, Cuddalore, on 5th August, 1972 and the sale was knocked down in favour of the petitioner for the highest bid of Rs. 3,800. On 6th February, 1973, by his proceedings, the Joint Registrar Chief Executive Officer and Registrar of the District South Arcot Co-operative Central Bank Limited, Cuddalore, confirmed the sale and a sale certificate was also issued to the petitioner on 18th December, 1974. There was an appeal by the respondent herein in C.M.A. No. 37 of 1973 to the Co-operative Appellate Tribunal (District Court, South Arcot. During the pendency of that appeal in I.A. No. 186 of 1973 in C.M.A. No. 37 of 1973, delivery proceedings were stayed and the stay was finally vacated on 28th September, 1974. Thereafter, on 18th July, 1977, the petitioner filed an application under Order 21, Rule 95 of the Code of Civil Procedure in E.A. No. 15 of 1977 for delivery of possession of items 1 to 4 of the properties purchased by him as per the sale certificate dated 6th February, 1973. The principal objection that was raised by the respondent herein to this application was that it is barred by limitation. The learned District Munsif, Cuddalore who heard this application upheld the plea of the respondent and dismissed the application filed by the petitioner for delivery of possession.

3. In this civil revision petition, the learned Counsel for the petitioner contends that the appropriate Article that would apply to a petition of this kind filed by the petitioner is Article 137 of the Limitation Act, 1963, which provides for a period of three years for making the application, the terminus a quo. being the accrual of the right to sue. The learned Counsel for the respondent, on the other hand, contends that Article 134 of the Limitation Act of 1963 would apply and therefore, the application, having been filed more than one year after the sale had become absolute, is barred. It is not disputed that excluding the time during which the order of stay was in force, the application filed by the petitioner has been made within three years from the time when the sale had become absolute It is equally not disputed that if the period for making an application of the kind resorted to by the petitioner is three years, then the application would be in time; out if it is one year, the application is barred. A decision on this question would depend upon a consideration of the statutory provisions under the Tamil Nadu Co-operative Societies Act (hereinafter referred as the Act) and the Rules framed thereunder. The obtaining of an award by the Co-operative Society against the respondent is no longer in dispute. Section of the Act empowers and enables the Registrar to recover sums by attachment and sale of the property. Under Section 91(a), the Registrar or any person subordinate to and empowered by him, subject to the Rules and without prejudice to other modes of recovery under the Act, recover any sum due under a decree or an order of a civil Court, a decision or an award of the Registrar or any person Subordinate to and empowered by the Registrar etc. Section 93 is a very important provision which throws considerable light upon the powers of the statutory functionary viz., the Registrar or any person subordinate to him empowered by him, while exercising his powers of recovery under Section 91(a). Section 93 is a deeming provision and when the powers under the Act are exercised for recovery of any amount by the attachment and sale or by the sale without attachment of any property or when passing any orders on any application made to him for such recovery or to take some step-in-aid of such recovery, the Registrar is deemed to be a civil Court for purposes of Article 182 of the First Schedule to the Indian Limitation Act, 1908. Article 182 of the Limitation Act, 1908, provided for the period within which, a decree of the civil Court not provided for by Article 183 or by Section 48 of the Civil Procedure Code, could be executed. Rule 56(11) of the Rules framed under the Act provides that Section 46 of the Code of Civil Procedure, 1908 and Article 136 of the First Schedule to the Indian Limitation Act, 1963, providing for a period of 12 years for the execution of the decree of civil Court have been made applicable mutatis mutandis in respect of the execution of decisions, awards and orders passed under the Act and the recovery under Section 91 of any amount due under a decree or order of a civil Court. Rule 67 makes elaborate provision for the procedure in the attachment and sale of immovable property for the realisation of moneys due under an award or decree. Under Rule 69(v), the Registrar is empowered on the confirmation of any such sale to grant a sale certificate under his seal and signature to the purchaser. Rule 70 specifically provides that when a purchaser of property is resisted and prevented by any person other than a person not being the defaulter claiming in good faith to be in possession of the property in his own account from obtaining possession of the immovable property purchased, any Court of competent jurisdiction on application and production of the certificate of sale under Rule 69, shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the Court. A careful scrutiny of the aforesaid statutory provisions as well as the Rules framed thereunder, reveals that in the process of execution of the award for the realisation of the amounts due thereunder and in the holding of the sale and other related proceedings, the Registrar is deemed to be a civil Court. Though for the aforesaid purposes, the Registrar is deemed to be a civil Court, yet in so far as obtaining of delivery of possession of property purchased in a sale held by the Registrar or other authorities under the Co-operative Societies Act is concerned, Rule 70 treats the purchaser at such a sale as a Court-auction purchaser. That this is the intention of the Rule is clear, though not very explicity and happily expressed, and is evident from the use of the words 'as if the immovable property purchased had been decreed to the purchaser by a decision of the Court'. This would mean that the property should be treated as having been purchased or acquired pursuant to a decision of the Court viz, a decree. That would place a purchaser at a sale held by the Registrar under the provisions of the Co-operative Societies Act, on a part with a purchaser at a Court sale in execution of a decree and therefore, the appropriate article that is applicable would be the one which provides for delivery of possession of the properties purchased at a Court sale. Under Article 180 of the Indian Limitation Act, 1908, a period of 3 years had been provided for, which has been reduced to one year, under Article 134 of the Limitation Act, 1963. The procedings in the instant case are governed by Article 134 of the Limitation Act, 1963 and therefore, the application in the instant case, having been filed beyond one year, is barred.

4. A consideration of the decisions rendered in relation to the provisions of the Act and the Limitation Act also establish this. In Abdul Aziz Sahib and Ors. v. Chokkan Chettiar and Anr. : (1935)69MLJ821 the word 'purchaser' occurring in Article 180 of the Limitation Act, 1908, has been interpreted to mean and include cases, where the decree-holder himself is the purchaser and the purchaser is not the decree-holder. It has been held that this Article applies to application for possession by a decree-holder purchaser and that the residuary Article 181 does not apply. It has also been pointed out that the application for delivery cannot be regarded as an application for execution and therefore. Article 182 cannot apply. The specific Article which has been held to be applicable by the Full Bench to such cases is Article 180. It therefore follows that the Article which would be applicable in the light of the above interpretation of Rule 70 of the Rules framed under the Act would only be Article 180 of the Limitation Act, 1908, which corresponds to Article 134 of the Limitation Act, 1963. The learned Counsel for the respondent relied upon the decision in &. V. Subba Rao v. The Calicut Co-operative Urban Bank Ltd. : AIR1939Mad304 In that case, Venkataramana Rao, J., had occasion to consider the question of limitation with reference to the enforcement of awards of the Registrar functioning under the Co-operative Societies Act before the civil Court. In considering this question, it has been held that the award of the Registrar under Section 51 of the Act is given the same status as a decree of a Civil Court for the limited purpose of execution and the law relating to enforcement of decrees of such Courts, including the law of limitation, will apply by necessary implication. Article 182 of the Second Schedule of the Limitation Act, 1908 was held to be applicable to the enforcement an award passed by the Registrar of Co-operative Societies under Section 51 of the Co-operative Societies Act by a civil Court, other than a High Court. On appeal against this judgment in S.V. Subba Rao v. The Calicut Cooperative Urban Bank Limited, Calicut (1949) 1 M.L.J. 268 : I.L.R. (1940) Mad. 649 : 51 L.W. 189 : A.I.R. 1940 Mad. 635 this view of the learned Judge was affirmed and Article 182 of the Limitation Act, 1908 was held to be applicable. In the course of the judgment, the Bench observed thus:

The award when it is filed has to be executed as a decree of the Court and in effect it becomes a decree of the Court. As the provisions of the Code of Civil Procedure admittedly apply, the provisions of Section 48 of the Code must apply. Section 48 provides that a decree shall run for a period of twelve years, provided, of course, that steps in execution are taken at intervals of not more than three years as required by Article. 182 of the Limitation Act. If Section 48 applies, it follows that the appropriate article is 182 and not Article 181. If Article 182 did not apply, but Article 181 did, there would be a conflict as Article 181 fixes a period of three years and Section 48 a period of twelve years.

It was further held that in the execution of awards, there is no difference between Section 15 of the Indian Arbitration Act and Rule 15(7)(c) of the Co-operative Societies Act and that where an award has been filed in Court, it shall (unless the Court remits it to the reconsideration of the arbitrators or umpire or sets it aside) be enforceable, as if it were a decree of the Court and therefore Article 182 of the Limitation Act, 1908, alone will apply. If for purposes of execution of the award Article 182 of the Limitation Act, 1908, applied as if it is a decree, then after the purchase of the property in the course of such execution, if the purchaser wants to take possession of the property, it cannot cease to be a purchase in execution of a decree for purposes of obtaining delivery. The learned Counsel for petitioner places strong reliance upon the judgment of Happell, J., in Chigurupalli Krishna Rao, minor and Anr. v. The Manager, Bhaskarapuram Co-operative Society represented by its Manager Bellamoodi Sankara Rao : AIR1944Mad434 Therein, it has been held that the right to apply in execution accrued on the date of the confirmation of the sale and not from the date when the attempt of the purchaser to enter on the land was resisted and therefore, the application for delivery of possession had to be made within three years from the date of confirmation of the sale and therefore, the application was out of time. Article 181 of Limitation Act, 1908, has been applied by the learned Judge which as pointed out in the Full Bench decision in Abdul Aziz Sahib and Ors. v. Chokkan Chettiar and Anr. : (1935)69MLJ821 does not apply to an application for delivery of possession of property purchased at Court sale to which Article 180 alone would apply. In addition, in Mohamed Amin Sahib v. Tiruvannamalai Cooperative Society by its Secretary M S. Seshachala Aiyar and Ors. : AIR1950Mad234 it has been laid down that the application for delivery of possession would be barred if it had been filed more than three years after the date of confirmation of the sale. Obviously, this observation of the Bench is based upon Article 180 of the Limitation Act, 1908 which would apply to applications for delivery of possession of property purchased in a Court sale, as stated by the Full Bench. It is also pertinent to point out that in addition it was also admitted in that case that Article 180 of the Limitation Act, 1908, would apply to that case. Under Article 180 of the Limitation Act, 1908, a period of three years was available which has been reduced to one year under Article 134 of the Limitation Act, 1963, and the appropriate Article applicable to the instant ease is only Article 134 of the Limitation Act, 1963. The application for delivery, having been filed more than one year after the sale had become absolute, was rightly rejected by the Court below. The civil revision petition, therefore, fails and is dismissed. No costs.


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