Kamakshi Ammal and Another vs Arukkani Ammal and Another

Rajamannar, C, J.—In our opinion the application of Article 180, Limitation Act, to the facts of this case by the learned Judge was right.

Though the third column of Article 180 refers to the date when the sale becomes absolute, that clause must be read not only with the provisions of

Order 21, Rule 92 (1), C.. P, Code, but also with the other material sections and Orders of the Code. This view has been authoritatively

enunciated by their lordships of the Judicial Committee in AIR 1934 134 (Privy Council) .

In the present case there was an application under Order 21, Rule 58, Civil P. C., by Nagammal, who claimed under a possessory mortgage, and

that claim was, as a matter of fact, allowed on 14-6-1943. The decree-holder filed a suit to set aside this claim order as she was entitled to do.

This suit terminated in a compromise decree only on 15-8-1944 and the application under Order 21, Rule 95, Civil P. C. was made by the

decree-holder on 14-8-1947. within three years from the date when the claim suit was disposed of.

We are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15-8-1944. Till then

the title of the Judgment-debtor remained to be finally settled, namely, whether the judgment-debtor was entitled to the entire property

unencumbered, or she was entitled only to the equity of redemption at the time of the attachment and the sale.

Till the rights were finally adjudicated in the course of the execution proceedings, it cannot be predicated what exactly the purchaser is entitled to

get by virtue of his purchase. It will be only then that she can file an application for delivery of possession. If it be finally held that she was only

entitled to the equity of redemption, she would be entitled only to symbolical possession under Order 21, Rule 96 C. P. C.. If, on the other hand,

the possessory mortgage was found to be sham and nominal and the judgment-debtor was held to be entitled to the entire property, then the

decree-holder will be entitled to obtain delivery of possession of the property itself. Till this was determined, it cannot be said that the court auction

sale has become absolute.

Reliance was placed by Mr. Ramamurthi for the appellant on the decision in Sornam Pilai v. Thiruvazhiperumal Pillal, 51 MLJ 126: AIR 1926

Mad 857 (B). But in that case the Judgment debtor filed a suit, not in continuation of any proceedings in execution, but Independently for setting

aside the court sale after declaring that the decree in the suit was not binding on him. Obviously he could not have taken up that stand in the course

of execution, because the executing Court could not possibly go behind the decree. That decision has no bearing on the facts of this case.

We agree with Ramaswami Gounder J. that the principle of the Privy Council decision above mentioned would govern the present case also. It

is only when proceedings started during the course of execution come to a final termination that it can be said that the court sale has become

absolute. The appeal is dismissed with costs.