Majeti Ramakrishnayya and Another vs Pulavarti Venkata Subba Rao and Others

Satyanarayana Rao, J.—This appeal arises out of a petition filed by the legal representatives of the decree-holder under Order 21 Rules 95 ,

Civil P. C. for delivery of Immovable property which was purchased in court auction by the decree-holder on 28-1-1341, in execution of the

decree in O. S. No. 37 of 1937. The sale was confirmed on 7-3-1941. Undoubtedly at the time the decree-holder was alive. It is not known

when exactly he died; but the first application, E. A. No. 203 of 1941 (Ex. B. 1) for delivery of possession of the property as per the sale

certificate was filed on 21-8-1941. The warrant was returned unexecuted as no one was present to take delivery of possession of the property on

behalf of the decree-holder purchaser, and the petition was closed.

The second application, E. A. No. 199 of 1943 (Ex. B. 2) was filed on 7-7-1943 for the same relief, and that was struck off on 2-9-1943 as the

warrant was returned unexecuted, as the house was under lock and key.

The third application, E. A. No. 89 of 1945 (Ex. B. 4) was filed for delivery of possession on 28-3-1945, and that again was dismissed on 11-7-

1945 on the ground that the delivery warrant was returned unserved as the petitioner failed to accompany the amin to take delivery of possession.

The fourth application E. A. No. 153 of 1945 (Ex. B. 5) was filed on 29-9-1945 for the same relief, and that was dismissed on 14-11-1945 as

delivery batta was not paid.

The fifth application, E. A. No. 213 of 1946 (Ex. B. 6) was filed on 22nd August 1946 which was dismissed on 3-10-1946 as batta was not paid.

The sixth application E. A. No. 49 of 1947 (Ex. B. 7) was filed on 24-3-1947 for the same relief, and was dismissed on 16-7-1947 as batta was

not paid.

It was after all these applications, that the present application was filed on 30-3-1948. The respondents objected that the petition was not

maintainable, and that it was barred by limitation.

The petitioners in the lower court attempted to get over the plea of limitation by relying on two circumstances. In the first place, it was alleged

that the petitioners were minors when the earlier applications were filed, even now petitioners 2 and 3 are minors, and that therefore they were

entitled to rely on Sections 6 and 7 of the Limitation Act for extension of the period of limitation. Secondly, it was contended that there was no

judicial disposal of the second of the applications, E. A. No. 199 of 1943 (Ex. B. 2) as it was struck off, as the house was under lock and key,

and that the present application should be treated as an application to revive and continue execution, in pursuance of E. A. No. 199 of 1943 which

was not properly disposed of. These contentions found favour with the learned District Judge and he overruled the plea of limitation and directed

execution to proceed.

This appeal is by the judgment-debtors, and they challenge the correctness of the decision of the learned District Judge. It is not disputed that

the proper Article of the Limitation Act applicable to the case is Article 180, which provides a period of three years counting from the date when

the sale became absolute for an application by a purchaser of Immovable property at a sale in execution of a decree for delivery or possession. It

has now been decided by a Full Bench of this court in -- ''Abdul Aziz Sahib v. Chokkan Chettiar'', AIR 1835 Mad 803 (A), that an application

even by a decree-holder auction purchaser for delivery of possession of the property purchased by him in execution sale is governed by Article

180 and not by Article 182 of the Indian Limitation Act, 1908. At the time when the right to apply for delivery of possession accrued, the decree-

holder was alive, and as time began to run from that date, the subsequent disability of the legal representatives of the decree-holder would not

prevent the running of time.

They are therefore, not entitled to invoke the benefit of Sections 6 and 7 of the Limitation Act, for at the time from which the period of limitation is

to be reckoned, the person entitled to apply, namely, the decree-holder auction purchaser was not a minor. The view of the learned Judge that the

applicants were entitled to the benefit of those two sections proceeded on an erroneous assumption that at the time when the sale became absolute

there was no major who could have applied for delivery of possession. This ground on which therefore the learned District Judge rested his

decision cannot be sustained in view of the fact that the decree-holder was a major at the material time.

It therefore becomes necessary to examine the alternative ground on which the judgment of the learned Judge was sought to be sustained. It is

no doubt true that if the application for delivery of possession by the auction-purchaser became infructuous for no fault of his but by reason of

some obstruction caused either by the judgment-debtor or by a third party, and there is no judicial disposal of that application the application could

be revived by a subsequent application reminding the court to continue further execution in pursuance of the previous application not properly

disposed of. The second application in such an event could not be treated as barred by limitation, as it was merely intended to revive and continue

the previous application, which was not finally disposed of.

But the position is altogether different where owing to the default or laches of the auction purchaser himself a previous application could not have

been carried into effect and was therefore dismissed, for in such a case by the subsequent application the previous application could not be

revived. It is unnecessary to cite authorities in support of these principles. It would be sufficient to refer to a decision of a Division Bench of this

Court in - Sree Rajah Vadievu Viswasundara Rao Vs. Vannamu Paidigada and Others, where these principles were enunciated and which

decision was subsequently followed in this court. It has therefore to be decided on the facts of each case whether or not there was default on the

part of the auction-purchaser or whether there was no judicial disposal of the application for no fault of the applicants.

In the present case the second of the execution applications was dismissed on the ground that the house was under lock and key; but thereafter

for the same relief several applications were filed in which the plea of limitation was not raised by the judgment-debtors and there was an order for

delivery. But either owing to the absence of the representatives of the decree-holder to take delivery of possession or for failure to pay batta as

required by the rules the applications were dismissed. As it was by reason of the default of the applicants that the subsequent applications were

dismissed, they cannot now ask the court to condone their subsequent default and revive an application filed long ago. In none of the subsequent

applications filed by them after the second of the execution applications did they ask the court to revive and continue execution in pursuance of E.

A. No. 199 of 1943. They filed independent applications for delivery of possession, and by reason of their laches the delivery could not be

effected. The petitioners cannot blame anybody except themselves for the position in which they had placed themselves.

The principle therefore of reviving a previous execution application not judicially and finally disposed of by the court cannot be invoked by the legal

representatives of the decree-holder in the present case. When in E. A. No. 199 of 1943 it was discovered that the house was under lock and

key, it was up to them to have applied to the court to have the house delivered, if necessary by authorising the amin to break open the locks and

effect delivery. Such a step was not taken. It could not be considered that the second of the execution applications was not judicially disposed of

merely because the order was that it was struck off. It was struck off not for any statistical purposes, but because of the return of the amin that the

house was locked and no further steps were taken by the auction purchaser to effect delivery by breaking open the locks of the house. For these

reasons, we think that the learned Judge was not justified in treating the present application, E. A. No. 64 of 1948, as one to revive and continue

the further execution in I. A. No. 199 of 1943. It was an independent application, and as it was filed more than three years from the date when the

sale became absolute, it was barred by limitation under Article 180, Limitation Act.

The result is the appeal is allowed, the order of the learned District Judge is set aside, and E. A. No. G4 of 1948 is dismissed with costs here

and in the court below.