Sornam Pillai vs Tiruvazhiperumal Pillai and Others

This Civil Miscellaneous Second Appeal arises out of an application in execution filed by the 1st respondent for delivery of the properties sold

to him by the decree-holder who had herself purchased the properties in execution of a mortgage decree in O.S. No. 507 of 1911 on the fileof the

District Munsif''s Court of Srivaikuntam. The Court sale was held on the 12th of September 1919 and was confirmed on the 15th of October,

1919. The 1st respondent who held a mortgage over the suit properties was not a party to O.S. No. 507 of 1911. Having obtained a decree on

his mortgage in a suit in which the prior mortgagee-decree-holder was not impleaded as a party, he filed an application under Order 21, Rule 90 of

the CPC to set aside the Court sale on the 15th October, 1919. That application was dismissed on the same date. A day after the aforesaid Court

sale and two days before the said application, the 1st respondent instituted O.S. No. 494 of 1919 on the file of the District Mun-sif''s Court of

Srivaikuntam praying for the setting aside of the Court sale in O.S. No. 507 of 1911 after declaring that the decree in that suit was not binding

upon him. The said suit was eventually dismissed on the 27th of November, 1922. In the meantime he purchased the suit properties from the

decree-holder in O.S. No. 507 of 1911 and presented the application which has given rise to this appeal on the 24th of January, 1923 for delivery

of the properties to him,

The appellant is one of the sons of the mortgagor. He contended that the execution application was barred by limitation under Article 180 of the

Limitation Act. Accepting that contention the first Court held that, since the application dated 24th of January, 1923 was not made within three

years of the date when the Court sale had become absolute on the 15th of October, 1919 as required by that article, it was time barred and

dismissed it. On appeal by the 1st respondent, the learned Subordinate Judge set aside that decision holding that the 1st respondent was entitled in

computing the period of limitation under Article 180, to deduct in his favour the period during which O.S. No. 494 of 1919 (renumbered as O.S.

No. 118) was pending on the file of the Additional District Munsif''s Court at Tinnevelly, as the cause of action for delivery of properties was

suspended during that period, i. e., from the 13th October, 1919 to the 27th of November, 1922.

It is urged before us that the Subordinate Judge''s decision should be set aside because (1) no appeal lay to the Lower Court u/s 47 of the Code

of Civil Procedure, and (2) under Article 180 of the Limitation Act the respondent is not entitled to deduct in his favour the period from the 13th of

October, 1919 to the 22nd November, 1922.

As regards the first point, the argument advanced is that (a) the right of the resppndent to recover possession of the land is not a question

relating to the execution, discharge and satisfaction of a decree, and (b) if it is, that the question does not arise between the parties to the suit or

their representatives. In Sandhu Taraganar v. Hussain Sahib at 14 M.L.J. 474, following the previous decisions of this Court, it was held that the

proceedings between a decree-holder who has purchased at Court auction and the judgment-debtor are proceedings relating to the execution,

discharge and satisfaction of the decree and no distinction can be drawn in principle between such a case and one like the present where the

proceedings are between a party who derives title from a decree-holder who has purchased at Court auction and a judgment-debtor. It was also

held in that case that the purchaser from the decree-holder who has purchased at Court auction is a representative of the decree-holder within the

meaning of Section 47 of the Civil Procedure Code. If that decision lays down the law correctly, then it must be held that u/s 47 of the CPC an

appeal lay to the Lower Court in this case, but it is argued that, in view of the Full Bench decision in Veyindramuthu Pillai v. Maya Nadan 38

M.L.J. 32 (F.B), the decision in Sandhu Taraganar v. Hussain Sahib ILR (1904) M. 87 should no longer be followed. This argument cannot be

accepted. In discussing the ""representative character"" of the various kinds of purchasers at a Court sale referred to in the three questions submitted

to the Full Bench, the learned Judges Abdur Rahim and Oldfield, JJ, proceed on the assumption that the question that arose in that case related to

execution, discharge and satisfaction of a decree within the meaning of Section 47 (se,e pages 116 and 128) and nothing contrary to that

assumption appears in the judgment of Seshagiri Aiyar, J. The first question decided in Sandhu Taraganar v. Hussain Sahib 14 M.L.J. 474 was

thus left untouched in the Full Bench decision. As regards the second question, it was no doubt raised in the second point referred to the Full

Bench, but we are not able to say from the discussion of it in the judgments that the decision in Sandhu Taraganar v. Hussain Sahib 14 M.L.J. 474

on this point has been overruled by the Full Bench though it is fairly clear that the opinions of Old-field and Seshagiri Aiyar, JJ. lend some support

to the appellant''s argument. The decision in Jainulabdin Sahhib Vs. Krishna Chettiar, following the Full Bench does not help to make the point

clearer and does not refer to the decision in Sandhu Taraganar v. Hussain Sahib 14 M.L.J. 474. In this stats of authorities, we feel bound to follow

the rule of procedure laid down in the decision in Sandhu Taraganar v. Hussain Sahib ILR (1904) M. 87 at 89 and hold that an appeal lay to the

Lower Court against the District Munsif''s order u/s 47 of the Civil Procedure Code.

The second argument relates to the question of limitation under Article 180 of the Limitation Act. That article prescribes "" three years "" from the

time "" when the sale becomes absolute "" as the period of limitation for a purchaser of immove-able property at a sale in execution of a decree to

apply for delivery of possession. In this case the application filed by the first respondent under Order 21, Rule 90 to set aside the auction sale

having been dismissed the sale became absolute on the 15th of October, 1919, and, therefore, the application for delivery, dated the 24th of

January, 1923, is barred under Article 180. But it is urged on the strength of the decision in Muthu Korakkai Chetti v. Madar Ammal 38 M.L.J. 1

(F.B.) that the appellant is entitled to deduct in his favour the period during which O.S. No. 494 of 1919 was pending in the Court, in which case,

his application would be within time. In our opinion the principle of that decision is inapplicable to the present case. In Muthu Korakkai Chetti v.

Madar Ammal 38 M.L.J. 1 the period allowed to be deducted in favour of the execution purchaser applying for execution was the time during

which the application under Order 21, Rule 90 to set aside the Court sale was pending in the Court and it was held that the sale did not become

absolute within the meaning of Article 180 until the application to set aside the sale had been disallowed and the sale upheld, although an order

confirming the sale had been passed before the application to set aside the sale was made. In the case before us, as already pointed out, the

application allowed by the Code to set aside the sale was made by the first respondent and dismissed on the 15 th of October, 1919, and the sale

had, therefore, become absolute on that date under R. 92 of the Code and within the meaning of the third column of Article 180 of the Limitation

Act. There is no provision of law for excluding in favour of the auction-purchaser the period of the pendency of a suit filed by the judgment-debtor

to set aside a Court sale which is what is claimed in this case on behalf of the first respondent. Time having begun to run against him from the 15th

October, 1919, the application for delivery of possession filed on the 24th of January, 1923, is time-barred and must be dismissed.

The order of the learned Subordinate Judge is set aside and that of the District Munsif is restored with costs here and in the Court below.