Anthony vs Anthony

M.P. Menon, J.—The decree-holder/auction-purchaser in O.S. 107/71 is the revision Petitioner. The Court sale was on 8th October 1974 and it was confirmed on 11th November 1974. The Petitioner moved E.A. 864/75 (on 28th October 1975) for delivery, and it was ordered. In the meanwhile, the judgment-debtor filed an application claiming relief under Act 30/75, but the same was dismissed on 21st January 1976. He took the matter in appeal, in A.S. 15/76; and it is said that there was an order of stay by the appellate Court. The appeal was ultimately dismissed on 29th September 1979. In the meanwhile, the petition, in the delivery matter (E.A. 864/75) had been dismissed by the executing Court on 10th February 1976 as not pressed. More than two years after the dismissal of A.S. 15/76, the Petitioner auction purchaser moved another application E.A. 1156/81 for ordering delivery as directed in E.A. 864/75. The executing Court held, upholding the objection of the judgment-debtor, that the said application of 1981 was barred by limitation, in view of Article 134 of the Limitation Act, 1963. It is the correctness of this view which is now being challenged.

Under Article 134 the period of limitation for an application for delivery by a Court-auction purchaser is one year from the time when the "sale becomes absolute". The confirmation of the sale here was on 11th November 1974. Even excluding the period during which A.S. 15/76 was pending, E.A. 1156/81 was filed, admittedly beyond the above one-year period. But the contention is that E.A. 864/75 having been filed within the time allowed by Article 134, and was dismissed when there was a stay in A.S. 15/76, the subsequent E.A. filed in 1981 could and should have been treated as a continuation of the 1975 proceedings, or as a reminder for the revival of the same, and that in this view, the plea of limitation should have been over ruled.

To some extent at least the Petitioner''s contention seems to be supported by some of the observations of the Division Bench of the Madras High Court in Nandur Subbayya v. Venkataramayya 43 I.C. 155. though the Court there had proceeded on the basis that the dismissal of the first delivery petition was for statistical purposes, and without notice to the auction-purchaser, and that therefore the second one, though filed out of time, could be regarded as a continuation of the first. But the view so taken did not find favour with a subsequent Division Bench decision of the same High Court, reported in P.T. Ramalinga Mudaliar Vs. Arunachala Mudaly and Others, . In the said decision, their lordships drew pointed attention to the provisions of Articles 180 and 182 of the Limitation Act, 1908 and held that the theory of a decree being kept alive, by periodical applications, for the purposes of execution under Article 182, cannot be applied to applications for delivery by an auction-purchaser, separately governed by Article 180. And this view was reinforced by the Full Bench decision in Abdul Aziz Sahib and Others Vs. Chokkan Chettiar and Another, Thereafter, the Madras High Court has been more or less uniformly taking the view that an application for delivery under Article 180 (corresponding to Article 134 of the 1963 Limitation Act) could not be treated as an application for the execution of a decree under Article 182 (Article 136 of the present Act), and that the concept of a "step in aid of execution" could not be applied to the former. Therefore, where an auction-purchaser''s application for delivery happens to be dismissed for his default, the effect of such a judicial disposal could not be got over by equating it to "striking off" the application for statistical purposes.

It is unnecessary to examine the question further, with reference to the authorities cited at the hearing, because so far as I am concerned, the matter seems to be concluded by the Division Bench decision of this Court, in Ramakrishnan v. Mohammed Kutty 1973 K.L.J. 245. The facts there were more or less similar, and were these. The Court sale was confirmed on 19th December 1959. Application for delivery was filed in time, on 16th December 1981 (under Article 180 of 1908 Limitation Act, the period was 3 years). The application was allowed and the case was posted for delivery to 17th January 1962. But the applicant did not pay batta; and the matter was adjourned to 14th February 1962. Batta still remained unpaid, and the application was hence dismissed on the above date. Another E.A. was then filed on 7th October 1963 for "revival" of the 1961 application, and delivery on that basis; but the executing Court held that it was barred, under Article 180. While upholding the above conclusion, this Court took the view that the Article of the Limitation Act applicable to the proceedings was 180, that excuses based on "step-in aid" could not be attracted at all since Article 182 was not involved, and added:

The only other aspect that survives for consideration is whether the relevant execution application is only a continuation or a reminder to E.A. 1090/61. The earlier execution application was dismissed for default of the decree holder, and consequently, it was a judicial disposal, and there is no question of reviving that petition. The present execution application which was filed beyond three years from the date of the confirmation of the sale is obviously hit by Article 180 of Schedule I to the Indian Limitation Act, 1908, and the order passed by the executing Court has only to be confirmed.

If the dismissal of an application for non-payment of batta is a judicial disposal foreclosing "revival" of the same on the filing of another application employing suitable words of camouflage, the position must be more so where the first application is dismissed, as in the present, case, as "not pressed". It is also to be remembered that even within a period of one year after the disposal of A.S. 15/76, the Petitioner had not made any move in the proper direction. I am not only bound by the view taken in Ramakrishnan''s case 1973 K.L.J. 245 but am also in respectful agreement with it. It seems to me that it will be improper to allow auction-purchasers to file delivery applications in time and get it dismissed, and then to approach the Court again, years later, with pleas of "revival", "step-in-aid", "in continuation of", and the like.

I see no grounds to interfere and the revision is accordingly dismissed. There will however be no order as to costs.

*A reproduction from ILR (Kerala Series).