Appathurai Aiyar and Another vs Panayappan Servai

Madhavan Nair, J.—The petitioner before me is the auction-purchaser of the properties sold in execution of the decree in S.C.S. No. 1338

of 1917 on the file of the District Munsif''s Court of Manamadura. He himself is the decree-holder in that suit. He purchased the property on the

31st January, 1922. Afterwards on the 29th January, 1925 he filed E.A. No. 240 of 1925 for obtaining delivery of possession of the property.

The application was dismissed for non-payment of batta. A fresh application E.A. No. 886 of 1925 was filed on the 29th September, 1925, i.e.,

within eight months after the dismissal of E.A. No. 240 of 1925. It was held by both the Lower Courts that this petition E.A. No. 886 of 1925

cannot be treated as a continuation of E.A. No. 240 of 1925 and is therefore barred by limitation. The present petition is against this order.

It is argued on behalf of the petitioner that there is no need to treat the present petition as a continuation of the prior application as the prior

application itself according to the latest decision of this Court is to be considered as a step-in-aid of execution, and since the present application

has been filed within eight months after the prior application it must be considered to be within time. In support of his argument reference is made

to the decision reported in Mathonkandi Kannan v. Thayyil Pakkutti Avvulla Haji (1926) 52 M.L.J. 1 which seems to be a case very much similar

to the present one. The head-note of the case which represents the point that was decided is as follows:

An application for delivery of property by a decree-holder who has purchased the property in execution of his own decree is a step-in-aid of

execution within the meaning of the expression in Article 182, Clause (5) of the Limitation Act and that an act or an application in order to be a

step-in-aid of execution need not be in a pending execution application.

If that is so, E.A. No. 240 of 1925 is certainly a step-in-aid of execution, and since E.A. No. 886 of 1925 has been filed within eight months

after the disposal of the prior application that also must be considered to be in time and is not time-barred. The petition must therefore be restored

to file and disposed of on the merits. The case is remanded for disposal on the merits to the District Munsif''s Court of Manamadura. This petition

is allowed with costs throughout.