R. Raju Pillai vs Arukkani Ammal and Another

Rajamannar, C.J.—In our opinion the application of Article 180 of the Limitation Act to the facts of this case by the learned Judge was right.

Though the third column of Article 180 refers to. the date when the sale becomes absolute, that clause must be read not only with the provisions of

Order XXI, Rule 92(1) of the Code of Civil Procedure, but also with the other material sections and orders of the Code. This view has been

authoritatively enunciated by their Lordships of the Judicial Committee in Chandramani Shaha v. Anarjan Bibi LL.R. (1934) Cal, 945 (P.C.). In

the present case there was an application under Order XXI, Rule 58, Civil Procedure Code, by Nagammal, who claimed under a possessory

mortgage, and that claim was, as a matter of fact, allowed on the 14th June 1943. The decree-holder filed a suit to set aside this claim order as she

was entitled to do. This suit terminated in a compromise decree only on 15th August 1944, and the application under Order XXI, Rule 95, Civil

Procedure Code, was made by the decree-holder on 14th August 3947, within three years from the date when the claim suit was disposed of. We

are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15th August 1944. Till

then the title of the judgment-debtor remained to be finally settled, viz., whether the judgment-debtor was entitled to the entire property

unencumbered, or she was entitled only to the equity of redemption at the time of the attachment, and the sale. Till the rights were finally

adjudicated in the course of the execution proceedings, it cannot be predicated what exactly the purchaser is entitled to get by virtue of his

purchase. It will be only then that she can file an application for delivery of possession. If it be finally held that she was only entitled to the equity of

redemption, she would be entitled only to symbolical possession under Order XXI, Rule 96, Civil Procedure Code. If, on the other hand, the

possessory mort gage was found to be sham and nominal and the judgment debtor was held to be entitled to the entire property, then the decree-

holder will be entitled to obtain delivery of pos session of the property itself. Till this was determined, it cannot be said that the Court-auction sale

has become absolute.

Reliance was placed by Mr. Ramamurthi for the appel lant on the decision in Sornam Pillai Vs. Tiruvazhiperumal Pillai and Others, . But in that

case the judgment-debtor filed a suit, not in continuation of any proceedings in execution, but independently for setting aside the Court-sale after

declaring that the decree in the suit was not binding on him. Obviously he could not have taken up that stand in the course of execution, because

the executing Court could not possibly go behind the decree. That decision has no bearing on the facts of this case.

We agree with Ramaswami Gounder, J., that the principle of the Privy Council decision above mentioned would govern the present case also. It

is only when proceedings started during the course of execution come to a final termination that it can be said that the Court-sale has become

absolute. The appeal is dismissed with costs.