Arumugam vs M. Rangasamy and Palani Gounder

M. Karpagavinayagam, J.—Palani Gounder, the second respondent herein filed a money suit against Arumugam, the petitioner herein. The

same was decreed. Thereafter, the decree-holder, the second respondent filed execution petition and brought the property in question for sale.

Accordingly, the sale was held on 29.9.1999. Rangasamy, the first respondent herein is the auction purchaser. The sale was confirmed on

29.11.1999. Though the sale was confirmed on 29.11.1999, the first respondent/auction purchaser field an application for delivery of possession

of the property only on 19.7.2002. The petitioner filed objection mainly on the ground that under Article 134 of the Limitation Act, the application

has to be filed for recovery of possession within one year from the date of confirmation of sale and as such, the application for delivery of

possession is barred by limitation. Rejecting the objection by the order dated 6.1.2003, the execution court ordered delivery. Hence, this civil

revision petition.

The counsel for the petitioner mainly would raise two contentions: (1) The application under Order 21 Rule 35 C.P.C. would not be applicable

to the auction purchaser and Order 21 Rule 95 alone would be applicable. (2) Even assuming that the application has been construed to be filed

under Order 21 Rule 95, the auction purchaser would not be entitled to exclude the period of limitation u/s 15 of the Limitation Act, while

computing the period of limitation for such an application under Article 134 of the Limitation Act.

Mr. Manokaran, learned counsel for the petitioner would refer to the judgments in Pattam Khader Khan Vs. Pattam Sardar Khan and Another,

: Govindrao Sopanrao Kadam Vs. Gopinath Saware and another, : Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, :

GOVINDAN v. VENKATARAMA CHETTY 1966 I M.L.J.187 A.S. Krishnappa Chettiar and Others Vs. Nachiappa Chettiar and Others, :

ABDUL AZIM SAHIB v. CHOKKAN CHETTIAR I.L.R.(1935) 58 MDS 893 F.B. and Neckbar Vs. Prakash Nag Choudhari, : in support of

his contentions.

According to the counsel for the petitioner, the sale was confirmed on 29.11.1999 and therefore, the auction purchaser should have filed

application on or before 29.11.2000, whereas he filed the application only on 19.7.2002 which is clearly barred by limitation as per the provisions

of Article 134 of the Limitation Act. It is further submitted that though the confirmation of sale was challenged in the appeal by the brother of the

petitioner/judgment-debtor, Rangasamy, the auction purchaser was not a party to the said appeal. Therefore, the auction purchaser would not be

allowed to invoke Section 15 of the Limitation Act to exclude the period during which the appeal was pending.

I have carefully considered the submissions made by the counsel and also perused the impugned order and other records and the judgments

cited supra.

It is not disputed that the auction purchaser, the first respondent purchased the property in question in the Court auction sale on 29.9.1999. On

the same day, one Rangasamy, the brother of the petitioner filed a third party claim petition in E.P. No. 109 of 1998 and the same was rejected.

Thereafter, the sale was confirmed by the order dated 29.11.1999. The first respondent also deposited the sale amount.

Against the rejection of the third party claim petition, Rangasamy filed an appeal in A.S. No. 88 of 1999 before the Appellate Court challenging

the confirmation of sale. The same was ultimately dismissed only on 14.3.2002. On coming to know of this, the auction purchaser, the first

respondent filed an application under Order 21 Rule 35 C.P.C. on 19.7.2002 in E.A. No. 141 of 2002 for delivery of possession. A counter was

filed on behalf of the petitioner questioning the maintainability of the petition as well as the plea of limitation. The execution court ultimately

construed the petition under Order 21 Rule 95 C.P.C. and held that the application was filed within one year from the date of disposal of the

appeal in A.S. No. 88 of 1999, namely 14.3.2002 and as such, the first respondent is entitled to delivery and ordered accordingly.

Most of the decisions cited by the counsel for the petitioner would specifically observe that the application under Order 21 Rule 95 C.P.C. must

have been filed within one year from the date of confirmation of sale. But, those decisions would not help the petitioner, since in the judgment in

SHANBAGAVALLI AMMAL v. DAMODARAN 1964 II M.L.J.267 it has been held that Article 180 (present Article 134) of the Limitation

Act would apply to the case of an application for delivery, whether the auction- purchaser happens to be a stranger or the decree-holder himself.

As such, there is no difficulty in holding that the first respondent being the auction purchaser is entitled to invoke Article 134 of the Limitation Act.

Regarding the contention that Section 15 would not be applicable to the auction purchaser, since the application would not relate to the

execution of decree, the Supreme Court would observe in Anandilal and Another Vs. Ram Narain and Others, : that such a narrow and restricted

construction cannot be given. The observation is as follows:

A partial stay of execution of the decree like the one in question staying sale of the attached property in execution proceedings is within sub-

section (1) of Section 15 of the Limitation Act, 1908 so as to entitle the decree-holder to claim exclusion of the period during which there was stay

of sale but the property was to continue under attachment, for the purpose of computation of the period of limitation provided by Section 48 of the

Civil P.C. There is no reason why Section 15(1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a

complete or absolute stay of execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable.

On going through the decision in Anandilal and Another Vs. Ram Narain and Others, : it is clear that the word ""execution"" in Section 15(1)

embraces all the appropriate means by which a decree is enforced. It includes all processes and proceedings supplemental to execution. There is

no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in Section 15(1). Equally, there

is no reason why Section 15(1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or

absolute stay of execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable. Similarly, we cannot subscribe the

proposition that in a case of partial stay, the benefit u/s 15(1) can be had only where an execution application is directed against the same

judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of

execution within the meaning of the section. Where the stay has prevented the decree-holder from execution of the sale, then irrespective of the

particular stage of execution, or the particular judgment-debtor against whom, the execution was stayed, the effect of such an order is to prolong

the life of the decree itself by the period during which the order of stay remained in force.

In the light of the above observations made by the Supreme Court, it has to be held that when the appeal has been filed by the brother of the

petitioner as a third party claim petition questioning the confirmation of sale and stay has been granted, the order making the sale absolute would

not become complete and it becomes complete only when the said order is confirmed by the Appellate Court on the date of disposal.

In this case, though the sale was confirmed by the order dated 29.11.1999 after rejecting the third party claim petition in E.P. No. 109 of

1998, the said order was stayed pending appeal filed by the first respondent herein in A.S. No. 88 of 1999 which was disposed of by the

Appellate Court by dismissing the appeal only on 14.3.2002 and the application for delivery of possession of the property was filed on 19.7.2002

within one year from the date of disposal in the appeal under Article 134 of the Limitation Act, and the consequential order was passed vacating

the stay and sustaining the order of confirmation of sale. Therefore, I do not find any merit in the petition. The civil revision petition is dismissed.

Consequently, C.M.P. No. 1650 of 2003 is also dismissed.