Muthu Pukhraj Ratanjee vs Ganesh Mull Adaji

Ratnam, J.—This Civil Revision Petition, at the instance of the plaintiff-decree-holder-action purchaser in O.S. No. 116 of 1967, City Civil

Court, Madras, is directed against the order of the court below in E.A. No. 512 of 1980 in E.P. No. 5 of 1970 in M.C.C.O.S. No. 116 of 1967,

dismissing an application filed by him under O.21, R. 95, C.P.C., praying for delivery of possession of the property. The circumstances giving rise

to the civil revision petition may be stated at under; The respondent herein executed a promissory note in favour of the petitioner on 1st January,

1964, on the footing of which O.S. 116 of 1967 on the file of the City Civil Court, Madras, was instituted by the petitioner and a decree therein

was also passed in his favour on 11th November, 1968. With a view to realise the amounts due under the decree so obtained, the petitioner filed

on 31st August, 1970 E.P. No. 5 of 1970 for attachment and sale of the immovable property belonging to the respondent. On 5th October, 1970,

the property of the respondent was attached and the petitioner in E.A. No. 302 of 1972 after obtaining from Court leave to bid and set-off,

became the purchaser of the property at the sale held on 18th December, 1970. On 17th January, 1973, the respondent herein filed an application

under O.21, R. 90, C.P.C., to set aside the sale and along with application filed E.A. No. 82 of 1973 for accepting security. The application E.A.

No. 82 of 1973 was dismissed on 12th September, 1974, when the application to set aside the sale filed under O.21. R. 90, C.P.C., had

remained unnumbered. Consequent to the dismissal of the application in E.A. No. 2 of 1973 on 12th September, 1974, the court-auction-sale in

favour of the petitioner was also confirmed on 12th September, 1974. Thereupon, on 10th February, 1975 the petitioner applied in E.A. No. 61

of 1975 for delivery of possession of the property purchased by him in the Court auction sale held on 18th December, 1972. On 13th February,

1975, on that application, delivery was ordered by 13th March, 1975. On 13th March, 1975, since the delivery warrant was not returned, the

court directed that the delivery warrant be awaited and the matter was posted to 21st March, 1975. On 21st March, 1975, the court passed the

further order to the effect that the property was not delivered for want of police aid and breaking open of the lock. The matter was further

adjourned to 2nd April, 1975 for steps. On 24th March, 1975 an application was bled by the petitioner in E.A. 139 of 1975 to make available

police aid and that application was allowed on 2nd April, 1975 and the property was directed to be delivered by 29th April, 1975. Meanwhile, on

1st April, 1975, the respondent herein, instituted O.S. 2408 of 1975 City Civil Court, Madras for cancellation of the decree in O.S. 116 of 1967,

and in I.A. 6767 of 1975 in O.S. 2408 of 1975, the respondent prayed for an interim injunction restraining the petitioner from prosecuting further

proceedings in E.P. No 5 of 1970. That matter was fixed for hearing on 15th April, 1975. However, in E.A. 61 of 1975, on 29th April, 1975, the

court passed the following order:

Property not delivered as the petitioner received stay order from City Civil Court, Madras. Petition closed.

Meanwhile on 23rd April, 1975, the respondent herein filed E.A. No. 180 and 181 of 1975, seeking restoration of E.A. 82 of 1973 dismissed

on 12th September, 1974, and praying for a stay of further proceedings. Interim stay and notice was ordered on 26th April, 1975 and ultimately

E.A. No. 181 of 1975 was closed as unnecessary on 29th April, 1974. E.A. 180 of 1975 eventually was allowed on 31st August, 1976 and as a

result thereof, the application filed by the respondent herein under O.21, R. 90, C.P.C., was taken on file on 8th September, 1976 as E.A. 465 of

1976 and was dismissed on the merits on 20th November, 1976. The petitioner on his part filed an application in September, 1978 for restoration

of E.A. 61 of 1975, but for some reason or other, which is not quite clear, the application does not appear to have been entertained. The suit

instituted in O.S. 2408 of 1975 was dismissed on 28th February, 1979. Again, the petitioner filed E.A. No. 653 of 1979 praying to recognised the

power of attorney. The petitioner also filed E.A. 660 of 1979 on 20th March, 1979 for condoning the delay of 10 months and 10 days in filing the

restoration application under S. 5 of the Limitation Act. There was also another application filed by the petitioner on 20th March, 1979, along with

E.A. 660 of 1979, which had remained unnumbered, for the restoration of E.A. 61 of 1975. The petitioner had also filed E.A. 512 of 1980 on

22nd April, 1980 out of which the present civil revision petition has arisen, purporting to be one for delivery of possession of the property. Against

the dismissal of O.S. 2408 of 1975, the respondent had preferred an appeal in A.S. 63 of 1980 and that appeal also stood dismissed on 23rd

June, 1980 and during the pendency of the appeal in C.M.P. 344 of 1980, the respondent had sought for and obtained stay of all further

proceedings in O.S. 116 of 1967, After the dismissal of the appeal, on 27th June, 1980, the petitioner withdrew E.A. 660 of 1979 filed under S. 5

of the Limitation Act.

In the affidavit filed in support of E.A. 512 of 1980 the petitioner had referred to the purchase of the property by him in court-auction and the

confirmation thereof on 12th September, 1974, the filing of E.A. 61 of 1975 for delivery of the property and the order for delivery passed thereon,

the institution of the suit in O.S. 2408 of 1975 by the respondent herein and the filing of an application therein, the closure of E.A. 61 of 1975 on

29th April, 1975, the proceedings initiated by the respondent herein under O.21, R. 90, C.P.C., and the dismissal thereof on 20th November,

1976, and stated that for no fault of his the application filed by him in E.A. 61 of 1975 had been closed on 29th April, 1975 and such closure

should be deemed to be not on merits but only for statistical purposes and, therefore, he is entitled to file another application in the nature of a

reminder to court drawing its attention to the pendency of the application for delivery of possession and to request the court to revive and continue

the proceedings. However, the petitioner had prayed the relief of delivery of the property through court.

That application was resisted by the respondent herein on the ground that the application was barred by time. The confirmation of the sale in

favour of the petitioner on 12th September, 19/4, and the filing of an application by the petitioner for delivery in E.A. 61 of 1975 and the order for

delivery on 2nd April, 1975, were admitted. The posting of the case in E.A. 61 of 1975 to 29th April, 1975 was also not denied. The respondent

further pleaded that though he had taken steps to set aside the sale, there was no legal impediment of any kind which prevented the petitioner from

proceeding with his application for delivery filed in E.A. 61 of 1975, but that the petitioner did not pursue his application. The respondent further

stated that though the petitioner had filed an application to excuse the delay in E.A. 660 of 1979, that application was dismissed as withdrawn on

27th June, 1980 and that the present application in E.A. 512 of 1980 having been filed more than three years after the dismissal of the application

filed by the respondent under O.21, R. 90, C.P.C, would also be beyond time. The obstruction to delivery in E.A. 61 of 1975 should have been

removed through come according to the respondent, and for his omission to do so, the petitioner has to thank himself. The respondent also put

forth the objection that under Art. 134 of the Limitation Act, the application in E.A. 512 of 1930 was barred as it had been filed beyond six years

after the confirmation of the sale. A plea that the decree itself is void was also raised by the respondent. The application filed by the petitioner was

also claimed to the barred by the principles of res judicata or at any rate, by constructive res judicata. On the aforesaid grounds, the respondent

prayed for the dismissal of E.A. 512 of 1980.

The learned District Judge, Chengalpatts who enquired into this application, was of the view that the endorsement made on 29th April, 1975 in

E.A. 61 of 1975 which led to the closure of E.A. 61 of 1975 cannot be correct, that after the termination of the proceedings initiated by the

respondent in E.A. 465 of 1976 under O.21, R. 90, C.P.C., on 20th November, 1976, there was no impediment whatever for the petitioner to

take delivers of possession and that the application in E.A. 512 of 1960 was barred. Dealing with the question whether the application filed by the

petitioner can be regarded as one for revival or continuation of the earlier application in E.A. 61 of 1975, the learned District Judge concluded that

on the facts in this case the application filed by the petitioner cannot be said to be one for revival of the earlier application for delivery. On these

conclusions, the application was dismissed. Challenging the correctness of this order, the petitioner has preferred this civil revision petition.

Mr. M. Raghavan, learned counsel for the petitioner, first submitted that E.A. 61 of 1975 was ''closed'' on 24th April, 1975 and no final order

therein was passed and such closure could only be for (sic) purposes and the subsequent application in E.A. 512 of 1980 was made only with a

view to draw the a tension of the Court to the pendency of E.A. 61 of 1975 and to pass further orders there on and, therefore the application filed

by the petitioner could only be in the nature of an application for revival or continuation of the proceedings in E.A. 61 of 1975 and there being no

prescribed time limit for making such an application, the present application should have been entertained and dealt with on the menus. In this

connection the learned counsel for the petitioner draw attention to certain decisions of this Court, which will to referred to later in the course of this

judgment, to the effect that if the closure is without passing any final orders and for statistical purposes, then an application for revival or

continuation can always be filed which would really be in the nature of a reminder to court drawing attention to the pendency of the proceeding

before it and requesting it to pass orders thereon. Alternatively, the learned counsel for the petitioner submitted that the application in E.A. 512 of

1980 was with a view to execute the order for delivery passed on 13th February, 1975 in E.A. 61 of 1975 and that such an application can be

made within the time prescribed under Art. 136 of the Limitation Act, namely, twelve years from it at date and, therefore, the application made in

E.A. 512 of 1980 on 22nd April, is 1980 would be well within time. Reliance in this connection was placed by the learned counsel for the

petitioner on the decision in perumal v. Ramachandra Padayacli 94 L.W. 67

On the other hand, the learned counsel for the respondent submitted that even on the assumption that the sale was commotion On the

termination of the proceedings (sic) by the respondent herein in E.A. 512 of 1975 of 20th November 1970, the application in E.A. 12 of 1980

having been held only on 22nd April, 1980 would be out of time as per Art. 134 of the termination Act. It was also his further submission that

there was no impediment in the taking of delivery of possession of the property by the petitioner as no Stay order as such had been produced to

establish that the petitioner was prevented from taking delivery of the property. However, the learned counsel for the respondent would not

subscribe to the view taken by the court below that the endorsement made on 29th April, 1975 in E.A. 61 of 1975 cannot be correct, but would

state that E.A. 61 of 1975 was allowed to be closed only on account of the inaction of the petitioner and tanner, therefore, be called as ''closure''

for statistical purposes. The learned counsel would also admit that an erinaceous act of Court, if one such is established, should not prejudice the

lights of parties. A faint argument was also attempted to be raised that the decree obtained by the petitioner herein in O.(sic) 116 of 1967, City

Civil Court, Madras, is void. To substantiate the aforesaid submissions, the learned counsel for the respondent relied on the decisions in

Shonbaghavalli Ammol v. Damodaran 1964-2-M.L.J. 267 at 270=77 L.W. 89 and Ramakrishnayya v. Venkta subba Rao. 1954 M.W.N.

203=1954-2- M.L.J 89

8 In order to appreciate these contentions raised, it would be necessary first to consider the nature and effect of the order passed on 29th April

1975 in E.A. 61 of 1975. Admittedly, that application for delivery of possession was filed into court within the time prescribed for such

applications under Art. 134 of the Limitation Act. It is also seen from the several orders passed thereon, that the petitioner, on his part, had taken

all the necessary steps to secure-delivery of possession of the property purchased by him. Indeed, the petitioner had also moved for police aid are

secured the same as well and the court directed the delivery of the property to the petitioner on 29th April 1975. It was on that day the application

in E.A. 61 of 1975 was closed by the court below by passing the order referred to earlier. The learned District Judge, in the course of paragraph 5

of the order, has stated that the endorsement that the petitioner received stay order from the City Civil Court, Madras, cannot be correct. A

perusal of the order passed by the court below does not in any manner bring cut the basis for this conclusion of the learned District Judge. An

endorsement solemnly made and acted upon by the court resulting in the closure of an application cannot be got out of the way by merely

describing it as incorrect. In the absence of any materials showing conclusively that the endorsement was incorrect, it has to be taken as

representing the correct state of affairs as brought to the notice of the court on he basis of which the court had also acted. Even on the footing that

the statement was an incorrect one, in the absence of and thing to connect the petitioner with such an incorrect statement, the petitioner cannot be

penalised or put to any loss on that account. It is indeed unfortunate that the court below has proceeded on the assumption regarding the incorrect

nature of the endorsement made on 29th April, 1975. That endorsement had therefore to be acted upon as a correct representation to court, and if

so done, it is clear that on 29th April 1975 the court was of the view the there was some kind of intermediate obstacle which would effectively

prevent the petitioner from taking delivers of possession of the property purchased by him in court auction and, therefore, had ordered the close of

the application without passing any final order touching upon the entitlement of the petitioner to delivery of possession of the property. Under these

circumstances, the order passed in E.A. 61 of 1975 on 29th April 1975 cannot be stated to be an order passed on the merits of the application

but one pronounced with a view to take E.A. 61 of 1975 off the file of the court for statistical purposes. Indeed, the effect of such closure of

application in execution for statistical purposes is well settled. To close an application on account of an inability to immediately carry out the order

owing to an abstraction for instance, tantamount to the postponement of the carrying out of the order and the cannot be equated to a dismissal of

the application. The Court treats the preceding as closed only for statistical purposes.

A Division Bench of this Court in Patannaya v. (sic) 50 M.L.J. 215 had to consider whether an application filed by the decree-holder on 3rd

September, 1921 was in time, having regard to the earlier order passed in 1912 on another execution application, which was well within time, to

the effect that one item was delivered and the petition was recorded. The courts below dismissed the application as being barred by time. But

Jackson, J. took a contrary view and on further appeal, the Bench pointed out the procedure to be followed by courts executing the decree and

stated that the passing of an order like the lodging of the petition, or recording it or, striking it off, is not provided for at all and it is only to adjourn

matters sine die the phraseology ''lodged'' or ''recorded'' or struck of had been used, but that the application would still be on the record of the

executing court. Further, it has been pointed out by the I each that to speak of a revival of a petition which had not been dismissed would be

incorrect and any subsequent application is only intended to call the attention of the court to the fact that the petition has to be proceeded with, as

no party, should suffer by reason of the court keeping the matter pending on its file. In that view, it was held that the execution petition filed in 1915

was rending and that the subsequent application filed was not barred Pandalai, J. in Subramanin v. Angaaprachari 50 M.L.J. 215 referred to the

procedure of closing or striking off of such proceedings on statistical or administrative grounds and stated, that such disposal are not judicial ones

and that for purpose of limitation, they must be regarded as surviving or continuing. Walsh, J. in Subramania Chettiar and Others Vs. Angappa

Asari, had to consider whether an application for delivery of possession of the property which was closed on 22nd September 1921 would bar a

fresh similar application filed on 3rd March 1927. The order ''closed'' on the petition, dt. 22nd September, 1921, according to the learned Judge,

was not a proper disposal and that the application, dt. 3rd March, 1927 should be regarded as a reminder to the court to proceed with the

Original petition on which delivery was Ordered and which was never properly disposed of and, therefore, the later application was not time

barred the petition filed subsequent to the passing of the order ''closed'' on he application, dt. 22nd September, 1921 and before the filing of the

application on 3rd March, 1927 was all regarded as reminders to court that the petition was pending and in this view, the plea of limitation was

Appavoo Nainar Vs. Lakshmana Reddi and Others, v. K. Govindan AI.R. 1942 Mad. 718 dealt with a petition for delivery of possession wherein

executing one item, the rest of the items were delivered and as the auction purchaser apprehended obstruction, he stated that possession of that

item could be taken later, which was recorded by the court on 21st September, 1936, and the petition was dismissed. On 26th August, 1939

another application for delivery was filed on the ground that the later application must be considered to be a continuation of the prior application

and, therefore, that application would be in time. The application was dismissed as barred by time by the courts below. Kuppuswami Aiyar, J.

however, construed the order passed on 21st September, 1936 as one based on an apprehension of obstruction and expressing want of time to

take possession with the police help and, therefore, it was the duty of the Court to have posted the petition to some other date. It was also pointed

out by the learned Judge that since the party was not at fault, the dismissal of the petition must be considered to be an order adjourning the same

sine die till such time as steps are taken. The learned Judge held that the application was in time and in doing so followed the judgment of Baurn, J.

in C.M.A. No. 520 of 1940. Horwill, J. in Nalluru Kotayya (died) by his legal representatives Vs. Kolli Narayana, had to consider whether an

application filed by the decree-holder on 11th February, 1941 after the striking off of the earlier application filed by him on 2nd February, 1938,

would be in time The application came to be struck off because of an obstruction. It was pointed out by the learned Judge that if there was a

default in the prosecution of the application on the part of the auction-purchaser, then the dismissal is a final order disposing of the application. But,

if the application had been merely closed for no fault of the auction-purchaser, then the application for delivery must still be deemed to be pending.

Panchapakasa Ayyar, J. in Muthuvereanna v. Muthuvenkatarama 1991-M.L.J. 196 has pointed out that despite the use by court of expressions

like ''struck off'', ''lodged'', ''record'' or ''closed'', if the reliefs prayed for or some of them remain undisposed of without being covered by final

orders either granting or refusing them, the petitions will continue to remain on the file of the court and that it was the duty of the court to effectively

and validly dispose of the petition and that when a petition is closed for statistical purposes, it must be deemed to be pending and should be

proceeded with. In Uddandi Ramakrishna Mudali Vs. Y. Sivarama Prasad Bahadur Varu and Others the sale in favour of the decree holder was

confirmed on 4th January, 1944 and an application for delivery of possession was made under O.21, R. 95, C.P.C. But, owing to the obstruction

offered by the judgment-debtor, the application was dismissed on 22nd July, 1946. Another application was filed on 4th July, 1947 and an

objection was raised that the application was barred. The court pointed out that the prior application, notwithstanding its dismissal, must be

deemed to be pending and that a fresh application for delivery was only in the nature of a continuation of the former one and the application was,

therefore, held to be in time.

The Supreme Court in Venkanna v. Bangararaja AIR 1964 S.C. 1144 had occasion to consider the effect of orders like ''closed'' or ''closed

for statistical purposes'' or ''struck off'' or ''recorded'' etc., passed in proceedings by executing court. The Supreme Court pointed out thus :�

It is not necessary to express our opinion on the question whether such procedure is sanctioned by the CPC or not; but assuming that the court has

no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the courts in making an order ''closed''

for statistical purposes, is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without

jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it

stated. In either case, the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing

court that really matters, but it is realty the substance of the order that is material. Whatever terminology may be used, it is for the court to

ascertain, having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution

proceedings. If it did not intend to do so. It must be held that the execution proceedings were pending on the file of the Court....

It is clear that the form of the order is not the determining factor, but it is the substance that matters. Viewed in this light, the order passed on 29th

April, 1975 in E.A. 61 of 1975 cannot be considered to have finally determined the right of the petitioner to obtain delivery of possession of the

property purchased by him. In that sense, the application in E.A. 61 of 1975 must be still deemed to be pending and the subsequent application

filed by the petitioner in E.A. 512 of 1980 was only in the nature of a reminder to the court drawing its attention to the pendency of E.A. 61 of

1975 and requesting the court to take the necessary steps to deliver effective possession of the property to the petitioner. For nuking such an

application, there is no question of applicability of Art. 134 or any other Article of the limitation Act. In S.K. Sahgal v. Kishore Khan A.I.R 1959

S.C. 809 the question arose whether for the purpose of continuing execution proceedings already commenced, any question of limitation would

arise and the Supreme Court pointed out that it has long been recognised by the courts in this country that a right to continue a proceeding which is

pending is a right which arises from day to day and no question of any bar of limitation with regard to the enforcement of such a right arises. In

view of the aforesaid considerations, the application filed by the petitioner in E.A. 512 of 1980 was in the nature of a reminder to the court drawing

its attention to the pendency of E.A. 61 of 1975 and the need for passing further orders thereon and there being no prescribed period of limitation

for making such an application, the (sic) application was veil in time when it was made on 22nd April, 1980.

Earlier, it had been pointed out that the nature of the order passed on 29th April, 1975 in E.A. 61 of 1975 was not such as to determine the

right of the petitioner finally, but that that application should be still considered to be pending as a result of the closure of that application by court.

In view of that, Art. 134 of the Limitation. Act cannot be applied to the application made by the petitioner in E.A. 512 of 1980, as contended by

the respondent. Equally, the respondent cannot be heard now to say that there was no impediment in the taking delivery of possession of the

property by the petitioner, as the endorsement made on 29th April, 1975 proceedings the footing that the petitioner had received a say order from

the City Civil Court. Madras. That endorsement has been already found to be correct and as such it was that which was responsible for the

closure of the application in F.A. 61 of 97 sowing to the liability of the petitioner to take effective delivery of Again it has to be remember that P.A

61 of 1975 was not closed on account of any default on the part of the petitioner to take delivery or to pay batta or to take other steps in order to

Secure possession of the property purchased. On the contrary the records disclose that for to fault of the petitioner, the application had been

closed on account of an order of stay and therefore, the petitioner cannot be charged with an omission, to take the necessary steps so as to

disentitle him from filing another application in E.A. 512 of 1980. Indeed, a noticed earlier the learned counsel for the respondent was fair enough

to admit that the endorsement made on 29th April, 1975 in E.A. 61 of 1975, was not incorrect, and if that be so, the closure of the application by

the court on the basis of the endorsement, which had not been established in any manner as erroneous cannot prejudice the rights of the petitioner.

In this view of the matter, the application filed by the petitioner in E.A. 512, of 1980 cannot be rejected on the ground that the prior application in

E.A. 61 of 1975 was allowed to be closed on account of the default of the petitioner.

The decisions referred to earlier and relied upon by the learned counsel for the respondent do not support the contentions urged by him. In

Ramakrishnayya v. Venkata Subba Rao, 1944 M.N.W. 283=1954-2-M.L.J. 89 the earlier applications were dismissed and disposed of owing to

laches on the part of the decree-holder. Undoubtedly, in such a case, the decree-holder cannot be permitted to take advantage of his own laches

and come forward with another application under the guise of one, either for revival or continuation. Such is not the situation in the present case. In

the decision in Shanbagavalli Ammal v, Damodaran, 1964-2.M.L.J. 267 the principal question that arose for decision was whether an application

for delivery of possession by an auction-purchaser, who had purchased the property in execution of a decree passed in the (sic) side of this Court,

will be governed by Art 186 or Art. 180 of the Limitation Act. In holding that Art, 180 of the limitation Act would apply to such cases, the Bench

also contend the effect of an in complete order for delivery passed on a prior application and stated that in such cases, the subsequent application

must be regarded as an application to bring on for orders the earlier application for delivery, but that in that case, the earlier application for delivery

had been finally disposed of and, therefore, no question of revival would arise. The Bench further pointed out that an application for execution or

for delivery of possession can be regarded as a continuation or the previous application in cases where there has been no complete disposal of the

application on the previous occasion and where there has been termination of such proceedings for a reason for which the decree holder or the

auction-purchased is not respondent. The present case would fall under both the categories enumerated above and thus support the stand taken by

the petitioner. Thus on a consideration of the consideration under which the prior order in 5 A 61 of 1975 came to be passed on 24th April, 1975,

it is established beyond doubt further was no disposal of that application on that date but there was only a closure or triking off for statistical (sic)

and there fore the subsequent application filed by petitioner in E.A. 512 of 1980 would be in he nature of an application reminding the court to

proceed with the earlier application for delivery and such an application would also be well in time.

Earlier, the termination of the proceedings instituted by the respondent in E.A. 465 of 1976 under O. 21. R. 90 C.P.C., on 20th November,

1976, has been noticed. Emboldened by this the leaned counsel for the respondent attempted to raise (sic) of limitation as regards E.A. 512 of

1280 on the ground that the application had not been fled within one year after the confirmation of the safe, namely, 20th November, 1976, as

contemplated by Art. 134 of the limitation Act. On the dismissal of the application in E.A. 82 of 1973 for the acceptance of security on 12th

September 1974, the sale in favour of the petitioner was also confirmed. Even so, as a result of the restoration of E.A. 82 of 1973 in E.A. 180 of

1975 and the numbering of the petition to seaside the sale in E.A. 465 of 1976 filed on 17th January, 1973 and the disposal thereof only on 20th

November, 1976, the sale in the instant case cannot be stated to have become absolute during the period from 17th January, 1973 till the dismissal

of E.A. 465 of 1976 on 20th November, 1976. But even before that on 1st April, 1975, the respondent had instituted O.S. 2408 of 1975,

challenging the very decree in O.S. 116 of 1967 and that the suit was dismissed only on 28th February 1979 and the appeal there from in A.S. 63

of 1930 was also dismissed on 13th June, 1939. In other words between 1st April, 1975 till 28th June 1980 the very decree in execution of which

the petitioner had purchased the property, was put in peril and during that period the court auction sale in execution of that decree in favour of the

petitioner cannot be stated to have attained finality. It is thus obvious that as a result of the proceedings initiated by the respondent, the petitioner

could not secure in evocable and absolute title to the property till 23rd June, 1990 or at any rate, till with November, 1975, of 23rd June, 1980 is

considered to be the date when he same in favour of the petitioner had become absolute, then E.A. 512 of 1580 having been filed even prior to

that date, cannot certainly be barred by limitation even on the assumption that E.A. 512 of 1980 was a fresh a application for delivery to which

Art. 134 of the Limitation Act would apply. On the other hand if 20th November, 1976 is taken as the date when the sale in favour of the

petitioner had become absolute, then even earlier 10 that date in E.A. 61 of 1975 the petitioner had made an application for delivery of possession

of the property, which had been closed for statistic purposes but was otherwise pending and E.A. 512 of 1980 was filed on 22nd April, 1990 for

the continuation of the same and there again as seen before there cannot be any bar of limitation with reference to such an application. In either

event therefore the plea of limitation raised by the respondent has to fail.

That leaves for consideration the alternative contention raised by the learned counsel for the petitioner based on decision of this Court in (sic)

v. Rinachandra (sic) 94 L.W. 674. There also, the auction-purchaser got an order for delivery, but was not successful in obtaining actual delivery

either because the warrant was returned unexecuted due to obstruction or the property was found locked. Ultimately the application for delivery

were dismissed by the executing court. Thereafter, the purchaser again moved the executing court for delivery of possession, as one of the

properties was no longer under lock and key and the obstruction in the other was removed. However, by the time the second application was

filed, more than a year had passed since the confirmation of the sale. A plea was, therefore, raised that Art. 134 of the Limitation Act would apply

and that plea was upheld by the court below with reference to one of the cases and rejected in relation to the other. Both the matters were dealt

with together by Balasubrahmanyan, J. as they related to a decision on an identical question of limitation, while, pointing out that the Indian

Limitation Act. 1963 has done away with the old time ideas of revival, continuation step in aid, etc, the learned Judge was of the view that the

proper Article which would be applicable even in a case, where there had been an earlier order for delivery, is Art. 156, as that Article applied not

only to a decree, but also to an order of court, which is executable as an order. In this view, the learned judge held that the sub-sequent

applications for delivery were in time, having been filed within a period of twelve years, from the respective dates on which the earlier orders for

delivery were made Accordingly, in one of the cases, namely, C.R.P. 709 of 1980 where the lower court had ordered delivery, that order was

upheld, while in the other case C.R.P. 347 of 1977, where the application for delivery had been dismissed, by the lower court the learned Judge

reversed that order and directed delivery. Against the order passed in C.R.P. 709 of 1980 the petitioners therein preferred a petition for Special

Leave to Appeal (Civil) No. 6438 of 1981 before the Supreme Court of India challenging the correctness of the order and that petition was

dismissed by the Supreme Court on 28th August, 1981. In view of the confirmation of the order passed by this Court in C.R.P. 70 of 1980 by the

Supreme court of India is must be taken that in the instant case also Art 136 of the Limitation Act cart be applied to the order for delivery passed

earlier in E.A. 61 of 1975 on 18th February, 1975 and if so done, within twelve years thereafter, the petitioner can seek to enforce the order for

delivery by means of an application in E.A. No. 512 of 1980 on or before 13th February, 1987. In this view also. E.A. 512 of 1980 having been

filed on 22nd April, 1980 cannot be stated to be barred by limitation.

The argument of the learned counsel for the respondent that the decree in O.S. 116 of 1967. City Civil Court, Madras, is void has to be stated

only to he ejected. In the course of the delivery proceedings, is will not be open to the partly to the suit to challenge the correctness of the decree

in execution of which the property was sold. In addition, in this case, the respondent had already instituted a suit challenging the decree and had

failed therein and an appeal therefrom had also been dismissed. There is absolutely no material whatever to show that the decree in O.S. 116 of

1967, City Civil Court, Madras, was in any manner, void. There is thus absolutely no substance whatever in this contention of the respondent. No

other point was urged. For the foregoing reasons, the order of the Court below dismissing the application in E.A. No. 512 of 1980 filed by the

petitioner, cannot he sustained and has to be set aside. Consequently E.A. Nos. 61 of 1975 of and 512 of 1980 in E.P. No. 5 of 1970 in

M.C.C.O.S. Mo. 116 of (sic), will stand restored and the court below will proceed to deliver forthwith possession of the property purchased by

the petitioner. The civil revision is, therefore, allowed With costs.