Lakshmi vs Kochukunju Kurup

N.V. Iyengar J

This appeal is by the 2nd defendant and the question is whether the petition for delivery in execution filed by the respondent decree-holder auction-purchaser is barred under Article 164 Limitation Act (Travancore) corresponding to Article 180 of the Indian Act. The courts below concurrently found against the 2nd defendant that there was no bar of limitation, and hence this appeal. The facts are not in controversy. The execution sale took place on 9-2-1122. But the confirmation of the sale was stayed by order on the trial side pending disposal of a petition under Order 9 rule 13 filed by the 2nd defendant. This order was communicated on 8-3-1122. The petition under Order 9 rule 13 was eventually dismissed by the appellate court on 9-6-1951 and such disposal was apprised to the executing court by the decree-holder by filing a certified copy of the order on 4-12-1951. The executing court thereafter passed order on 19-1-1952 confirming the sale. The application for delivery was presented just within 3 years of this order, on 18-1-1955. The question is whether this application can be said to be filed within 3 years of the date "when the sale became absolute."

If the order of 19-1-1952 confirming the sale can be taken to be the order by which alone the sale became absolute, there can be no question of bar of limitation. But learned counsel for the appellant-2nd defendant says that no specific order confirming the sale is necessary for purpose of the sale being absolute, so that, when the Order 9 rule 13 petition was finally dismissed on 9-6-1951 or at any rate when the decree-holder intimated to the executing court on 4-12-1951, the sale must be deemed to have become absolute. And he relied on the analogy of litigation to set aside the execution sale under Order 21 rule 82 or , 91 or section 47 C. P. C. where it has been held that for purpose of Article 180 of the Limitation Act the sale becomes absolute not on the date when the formal order of confirmation is passed but on the termination of the litigation commenced by the judgment-debtor for having the sale set aside. See Krishnadatta v. Sindimrcm, A. I. R. 1950 Assam 89. Reference was also made to Aiyaru Aiyan v. Ktishnan Kesavan, 1952 K. L. T. 110 where an application to set aside the ex parte decree was held sufficient to imperil the fate of the court sale in the case in favor of the decree holder for purpose of Article 164 Limitation Act (Travancore). That is to say the court sale may not be directly but even be collaterally impugned. But here we are concerned with operative effect of an order for stay of confirmation once communicated but not effectively with-drawn, If the court that passed the order for stay dissolves the same and intimates the fact to the court concerned with the confirmation there will be no further question. In every other case the matter must depend upon the latter court to recognise for itself either the continued existence of the stay or otherwise from the information it gathers. The order specifically confirming the sale in this case, I take to be the declaration by the executing court that there is no more stay against its confirmation, I hold therefore that the court sale herein became obsolute only when it was specifically confirmed on 19-1-1952. The second appeal therefore fails and it is dismissed with cost.