Muthaiah Chettiar vs Krishnaswami Gounder (died) and Others

M.M. Ismail, C.J.—This is an appeal against the judgment and decree of Mohan, J., dated 22nd August, 1975 made in Second Appeal No.

1561 of 1971. The suit property originally belonged to the deceased first respondent and respondents 2 and 3 herein. O. S. No. 44 of 1958 was

filed by one Kuppanna Gounder against Chinnaswami Gounder, the first defendant in the present suit, on the foot of a, promissory note and that

suit was decreed. Pending suit, the plaintiff in O.S. No. 44 of 1958, namely, Kuppanna Gounder died, and his legal representatives, namely, his

son and widow were added as plaintiffs 2 and 3. In execution of the decree in E.P.R. No. 184 of 1963 the property was brought to sale in Court-

auction and was purchased by the appellant herein for a sum of Rs. 6,005 on 6th February, 1964. The sale was confirmed on 5th April, 1965.

When the appellant wanted to recover possession, that was obstructed by defendants 2 and 3 in the suit. Hence, the appellant filed O. S. No. 439

of 1967 on the file of the Court of the District Munsif, Erode, for delivery of possession and also for recovering past and future mesne profits. The

defence put forward by the defendants was that the remedy of the auction-purchaser was only to file an application under Order 21, Rule 95 of the

CPC for delivery of possession of the suit property and such remedy had become barred, since the appellant did not file such an application within

one year from the date of the confirmation of the sale, and the suit as such was not maintainable in view of the bar u/s 47 of the Code of Civil

Procedure. The learned District Munsif while holding that the appellant had acquired title to the property by virtue of the sale certificate, namely,

Exhibit A.1 dated 5th April, 1965, held that Section 47 of the CPC was not a bar to the maintainability of the suit and, therefore, decreed the suit

with past mesne profits. With regard to the future mesne profits, the learned District Munsif directed the same to be decided in separate

proceedings. The respondents herein filed A.S. No. 445 of 1970 on the file of the District Judge, Coimbatore East at Erode, and that appeal

failed. It is thereafter the respondent preferred the second appeal before this Court Mohan, J., in the judgment under appeal held that the suit was

barred under the pro-visions of Section 47 of the Code of Civil Procedure. However, he considered the submission made on behalf of the

appellant herein that the Court has the power to convert the suit into an application u/s 47 and dispose of the matter. The learned Judge was willing

to convert the suit into an application, but held that even as an application, the same was barred by limitation. According to the learned Judge, it is

Article 134 of the Schedule to the Limitation Act 1963, that applies and as per that Article the period of limitation was one year from the date of

the confirmation of the sale and in the present case the confirmation was effected on 5th April, 1965 and the suit was filed on 21st March, 1967

beyond the period of one year and consequently even treating the suit as an application u/s 47 of the Code of Civil Procedure, the application was

barred by limitation, with the result, the learned Judge allowed the second appeal and set aside the judgments and decrees granted by the Courts

below in O.S. No. 439 of 1967 and in A.S. No. 445 of 1970. However, the learned Judge granted leave to appeal, and hence the present

appeal'' comes up for disposal.

Having regard to the decision of the Supreme Court in Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and Others, . the learned Counsel

for the appellant-plaintiff does not challenge the conclusion of the learned Judge that a suit did not He and only an application u/s 47 of the Code of

Civil Procedure, lay. In view of this, the only question that we have to consider is whether the conclusion of the learned Judge that even as an

application u/s 47, the proceedings initiated by the appellant herein were barred by limitation was corrector not. Before us, the learned Counsel for

the appellant contended that the Article that will apply to an application u/s 47 is Article 137 of the Schedule to the Limitation Act, 1963 and not

any other Article. In this context, it is relevant to consider three Articles in the Schedule to the Limitation Act, namely, Article 134, Article 136 and

Article 137, and the said three Articles read as follows:

ArticleDescription of application Period of Time from which period begins

limitation to runs.

For delivery of possession by a One year. When the sale becomes;

purchaser of immovable property at a absolute.

sale in execution of a decree.

For the execution of any decree (other Twelve years. When the decree or order

than a decree granting a mandatory becomes enforceable or where

injunction) or order of any civil Court. the decree or any subsequent

order directs any payment of

money or the delivery of any

property to be made at a certain

date or at recurring periods

when default in making the

payment or delivery in respect

of which execution is sought,

takes place:

Provided that an application for

the enforcement or execution of

a decree granting a perpetual

injunction shall not be subject to

any period of limitation.

Any other application for which no Three years. When the right to apply accrues

period of limitation is provided

elsewhere in this Division.

Article 137 is a general and residuary Article and by its own terms will apply only to an application for which no period of limitation was provided

elsewhere in the Third Division to the Schedule. Therefore, we have to find out whether there is any other Article that will apply to the application

in question. The learned Counsel for the appellant contended that the Article that applies to the present case is Article 136 if not Article 137.

According to the learned Counsel, the very decision of the Supreme Court referred to above holds that an application for delivery of possession of

a property sold in execution of a decree will form part of the execution and, therefore, when the appellant applies for delivery of possession of the

property, it was merely for execution of the decree and consequently Article 136 applies. A combined reading of Article 134 and Article 136 will

clearly establish that even on the basis of the argument of the learned Counsel for the appellant, Article 134 is a special provision, while Article 136

is a general provision. We are, for the purpose of considering this question, assuming that an application for delivery of possession of the property

sold in execution of the decree can be treated as an application for execution of the decree. The learned Counsel relied on the very judgment of the

Supreme Court for putting forward the contention that an application for delivery of possession of the property sold in execution of the decree will

also be an application for execution of the decree. We are not able to accept this argument, because the Supreme Court dealt with all the three

expressions occurring in Section 47 of the CPC together, namely ""execution"", ""discharge"" and ""satisfaction"" and did not deal with the respective

scope of the three expressions as between them. Whatever that may be, there can be no doubt even on the contention of the learned Counsel for

the appellant, Article 136 will constitute a general provision, while Article 134 will constitute a special provision, because, according to the learned

Counsel, an application for delivery of possession of the. property sold, is an application for execution of a decree. In other words, even on the

contention of the learned Counsel for the appellant that delivery of possession of the property will be comprised in the expression ""execution of the

decree"", the inference is irresistible that Article 136 is a general provision, while Article 134 is a special provision. If so, there is no escape from

holding that the special excludes the general and, therefore, Article 134 alone will apply to an application filed by a purchaser of immovable

property at a sale in execution of a decree for delivery of possession of the property purchased by him

The learned Counsel for the appellant sought to contend that Article 134 will apply only when an application for delivery of possession is filed

under Order 21, Rule 95 of the Code of Civil Procedure, and will not apply when an application for delivery of possession is filed u/s 47 of the

Code. The learned Counsel was not able to convince us with reference to any principle or authority that such a distinction is warranted having

regard to the language of Article 134 of the Schedule to the Act. It is only on this basis, namely, when the application is filed under Order 21, Rule

95, Article 134 will apply, and if the application is filed u/s 47 of the Code of Civil Procedure, Article 134 will not apply, the learned Counsel

sought recourse to Article 137. As we have pointed out already, the learned Counsel for the appellant had not been able to convince us with

reference to any principle or authority that when an application for delivery of possession is purported to be made under Order 21, Rule 95, Civil

Procedure Code, it attracts Article 134 and when the same application is purported to be made u/s 47 of the CPC it attracts Article 137 and it is

the provision of law under which it is purported to be made that makes all the difference. It is pertinent to point out that Article 134 itself does not

refer to either Section 47 or Order 21, Rule 95 and is in general terms and this acquires significance in view of the fact that Section 5 of the

Limitation Act expressly refers to Order 21 of the Code of Civil Procedure, 1908, that section provides:

Any appeal or any application, other than an application under any of the provisions of Order 21, of the Code of Civil Procedure, 1908 may be

admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or

making the application within such period.

If it was the intention of the Legislature to make a distinction between an application for delivery of possession of the property sold at a Court

auction in execution of a decree filed under Order 21, Rule 95 and an application filed u/s 47, the Legislature would have expressly referred to the

provisions of Order 21 in Article 134.

Having regard to the above features, we agree with the conclusion of the learned Judge and dismiss the appeal.

However, there is one matter which needs to be clarified. As against the decree passed by the learned District Munsif in O.S. No. 439 of 1967,

the first defendant did not prefer an appeal, and the appeal was preferred only by defendants 2 and 3, in A S. No. 445 of 1970 on the file of the

Court of the District Judge of Coimbatore East at Erode, wherein he remained ex parte. In view of his remaining ex parte in the first appeal, notice

to him was dispensed with in the second appeal. Under these circumstances, we are of the opinion that the decree passed by the learned Judge

should be clarified by stating that the suit will stand dismissed only against defendants 2 and 3 and not against the first defendant.

There will be no order as to costs.