M.V. Govindan vs Venkatarama Chetty and Others

Thanikkachalam, J.—This revision is directed against the order passed in R.E.A. No. 23 of 1983 in R.E.P. No. 268 of 1970 in O.S. No.

594 of 1966 on the file of the District Munsif''s Court, Dharmapuri.

First respondent is the decree-holder and respondents 2 and 3 are the judgment-debtors. R.E.A. No. 23 of 1983 was filed for delivery of the

property, which the petitioner herein purchased in court auction held on 15.3.1971 for a sum of Rs. 4,005. The sale was confirmed on 2.6.1971

and the sale certificate issued on 21.6.1971. R.E.A. No. 458 of 1972 was filed for delivery of possession on 2.3.1972. On 8.3.1972 an order

was passed to deliver by 11.4.1972. Since there was obstruction, steps were directed to be taken for removal of obstruction. Since steps were

not taken, R.E.A. No. 458 of 1972 was dismissed on 14.4.1972. R.E.A. No. 134 of 1973 was filed on 21.11.1972 and an order for directing

delivery by 1.3.1973 after removing obstruction was passed, on 29.11.1973. On 7.3.1973 R.E.A. No. 388 of 1973 was filed for removal of

obstruction. On 22.12.1973 an order was passed directing delivery with police protection by 19.1.1974. O.S. No. 411 of 1974 was filed on

7.11.1974 to set aside the order passed in the execution proceedings on 25.1.1974. Execution petition was closed because of the interim order

passed in O.S. No. 411 of 1974. On 31.12.1974, the said suit was dismissed. On 4.6.1979 R.E.A. No. 23 of 1979 was filed. It was closed on

27.8.1986, since the sale certificate was not produced. The sale certificate could not be produced, since it was marked as document in O.S. No.

41 of 1974. A request was made to call for the records, but that was not done. On 9.6.1981 R.E.A. No. 23 of 1981 was filed, which was

converted into R.E.A. No. 23 of 1983 and the same was dismissed on 29.8.1986. It was against that order, the present revision petition has been

filed.

According to the petitioner, Article 136 of the Limitation Act would apply to this case, in which case, there is twelve years'' time for filing the

execution petition. If the date of confirmation of sale, namely 2.6.1971 is taken, R.E.A. No. 23 of 1981 which was filed on 9.6.1981 is well within

twelve years. According to the petitioner, 6 years 11 months and 15 days taken by the aforesaid proceedings are left to the credit of the petitioner

and the abovesaid period is taken into consideration, the execution petition is well within the period of limitation. According to the learned Counsel,

Article 134 will not be applicable and after delivery is ordered, only Article 136 will be applicable. In order to support his contention, learned

Counsel relied upon the two decisions in Mutha Pukhraj Ratanjee v. Ganesh Mull Adaji (1983) 1 M.L.J. 443 and Perumal and Others Vs.

Ramachandra Padayachi and Others, . It is, therefore, contended that the executing court was not correct in dismissing R.E.A. No. 23 of 1983 as

barred by limitation.

On the other hand, llearned Counsel appearing for the respondents submitted that in the present case, Article 134 of the Limitation Act would

govern and not Article 136. Therefore, the execution petition has to be filed within one year from the date of confirmation of sale. In the present

case, execution petition filed beyond one year is liable to be dismissed. In order to support this contention, learned Counsel for the respondents

relied upon the decisions in Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, and Govindrao Sopanrao Kadam Vs. Gopinath

Saware and another, . Therefore, according to the learned Counsel for the respondents, the execution court was correct in dismissing R.E.A. No.

23 of 1983.

Petitioner herein is the court auction-purchaser. The court auction sale took place on 15.3.1971 and the petitioner purchased the property for

Rs. 4,005. The auction was confirmed on 2.6.1971 and the sale certificate issued on 21.6.1971. Thereafter, R.E.A. Nos. 58 of 1972, 458 of

1972, 134 of 1973, 388 of 1973, 23 of 1979 and 23 of 1981 which was later on converted as 23 of 1983, were filed. R.E.A. No. 23 of 1981

was filed on 9.6.1981. In the meanwhile, a third party filed a suit in O.S. No. 41 of 1974, in which an interim order was passed restraining the

petitioner herein from taking delivery of the suit property. That suit was dismissed on 31.12.1974. According to the petitioner herein, the period

taken in the abovesaid proceedings, nearly 6 years 11 months and 15 days, is deducted, the execution petition is well within the time of 12 years.

Even otherwise, according to the learned Counsel, if the time is calculated from the date of confirmation of sale, the execution petition is well within

twelve years. According to the learned Counsel, Article 136 of the Limitation Act alone would be applicable to this case and not Article 134.

According to the learned Counsel for the respondents, the execution petition filed by the petitioner is barred by limitation, since it was not filed

within one year from the date of confirmation of sale. It was further contended that Article 134 would be applicable to the present case.

In the case of Perumal and Others Vs. Ramachandra Padayachi and Others, , while considering the provisions of ArticleS 134 and 136 of the

Limitation Act and Section 47, C.P.C., this Court has held as follows:

...What the decree holder-purchaser in each of these cases asked for was not an order for delivery, which hypothesis, he had already obtained in

the earlier application. He had approached the Court with the present application for executing the earlier order for delivery passed by that very

executing court. In this sense, therefore, Article 134 of the Limitation Act, could not have any application, for that Article only applied to an

application for delivery. It did not apply when that application had already been ordered and something had to be done with that order and

pursuant to"" that order. In this view, Article 136 was the proper provision to be applied, because that Article applied not only to a decree, but also

to an order of a court, which was executable as an order.

It was further held, as under:

An order for delivery passed by an executing court in favour of a court auction-purchaser is executable as an order within the time prescribed by

Article 136, Limitation Act.

In the case of Mutha Pukhraj Ratanjee v. Ganesh Mull Adaji (1983) 1 M.L.J. 443, while considering the Articles 134 and 136 of the Limitation

Act, this Court held as follows:

That leaves for consideration the alternative contention raised by the learned Counsel for the petitioner based on the decision of this Court in

Perumal and Others Vs. Ramachandra Padayachi and Others, . 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 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 Article 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, in Article 136, 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 subsequent 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. No. 709of

1980, where the lower Court had ordered delivery, that order was upheld, while in the other case, C.R.P. No. 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. No. 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 that order and that petition was dismissed by Supreme Court on 28th August, 1981. In view of the

confirmation of the order passed by this Court in C.R.P. No. 709 of 1980 by the Supreme Court of India, it must be taken that in the instant case

also, Article 136 of the Limitation Act can be applied to the order for delivery passed earlier in E.A. No. 61 of 1975 on 13th 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

1989 on or before 13th February, 1987. In this view also, E.A. No. 512 of 1980 having been filed on 22nd April, 1980, cannot be stated to be

barred by limitation.

While considering the provisions of Articles 134 and 136 of the Limitation Act and Section 47, C.P.C., the Supreme Court in the case of

Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, , has held as follows:

Article 134, Limitation Act, would be applicable to an application under Order 21, Rule 95 by the auction-purchaser for delivery of possession of

the property sold in execution of a decree. The periods of limitation prescribed by Articles 136 and 134 are for two different purposes, the former

being for the execution of a decree for possession in respect of which decree is passed and the latter for an application for delivery of possession

of immovable property which is purchased in the course of execution of a decree. The two articles have nothing in common for their operation. The

two articles are not in conflict with each other. An application for delivery of possession of immovable property purchased in execution cannot be

construed as an application for execution of a decree for possession of property so as to invoke the provision of Article 136, Limitation Act.

Merely because the auction-purchaser would be deemed to be a party in the suit in which the decree has been passed, as provided in Clause (a)

of Explanation II to Section 47 of the Code, and by virtue of Clause (b) of Explanation II all questions relating to delivery of possession of the

property shall be deemed to be questions relating to execution, discharge or satisfaction of the decree within the meaning of Section 47, an

application for delivery of possession under Order 21, Rule 95 cannot be equated with an application for the execution of a decree for possession

so as to apply 12 years'' period of limitation as prescribed as Article 136, Limitation Act, Civil Reve. No. 11 of 1981, dated 9.4.1986 (Raj.)

Reversed.

It is further held,

If Article 136 is held to apply to an application for delivery of possession then for the very same reason it will also apply to an application for

setting aside sale. In other words, an application for setting aside sale can also be made within a period of 12 years from the date of decree

irrespective of the date of sale, which is absorbed on the face of it.

It is further held,

The scope of Articles 134 and 136 and their subject matters being completely different, the question of implied repeal of Article 134 by Section 47

of C.P.C. read with Article 136 of Limitation Act does not at all arise.

It is also held,

The application for delivery of possession of property purchased by the auction-purchaser in auction sale in execution of decree made within one

year of the dismissal of the application of one of the judgment-debtors for setting aside the sale could not be said to be within the period of

limitation as prescribed by Article 134. The decree-holder would not be entitled to compute the period of one year under Article 134. The decree-

holder would not be entitled to compute the period of one year under Article 134, Limitation Act, from the date of dismissal of the second

application by one of the judgment debtor.

The decision of the Supreme Court cited supra was followed in the decision in Govindrao Sopanrao Kadam Vs. Gopinath Saware and another, ,

wherein the Bombay High Court held as hereunder:

The very purpose of providing a separate Article prescribing limitation different from the limitation prescribed for execution of the decree indicates

that the legislature was not in favour of treating an application for possession filed by an auction-purchaser under Order 21, Rule 95 to be an

application for execution of decree. Otherwise these different provisions of Article 134 and Article 136 were unnecessary. If the legislature would

have considered application of auction-purchaser for possession is not an application for execution of decree, therefore the exclusion of the period

of limitation u/s 15 is not available in computing the limitation for such application under Order 21, Rule 95.

Thus, considering the facts arising in this case in the light of the decision of the Supreme Court and that of the Bombay High Court cited supra,

I hold that R.E.A. No. 23 of 1981 which was converted as R.E.A. No. 23 of 1983 is barred by limitation, since it was not filed within one year

from the date of confirmation of the sale, as per Article 134 of the Limitation Act. In view of the abovesaid decision of the Supreme Court, the

decisions cited by the learned Counsel appearing for the petitioner herein are no longer good law. Therefore, there is no need to interfere with the

order passed by the Execution Court dismissing R.E.A. No. 23 of 1983. Accordingly, this revision petition is dismissed. There will be no order as

to costs.