Thayyamuthu vs Odayappan and Another

Krishnan, J.—In this Civil Miscellaneous Second Appeal the father of the respondents before me had obtained a decree and in execution of

that decree had got certain properties sold and purchased the properties himself. He died subsequently and the respondents have taken his place

now. They put in an application to the Court under Order 21, Rule 95, Civil P. C., for being put in possession of that property. At that time the

only person in possession of the property was a tenant named Pethaperumal. When this application was pending and before orders could be

passed on it, an application to set aside the ex-parte decree was made and a stay order was obtained. That case went up in appeal and was finally

dismissed. Immediately there after another suit was brought to set aside the decree and for an injunction restraining the defendants therein, the

present respondents, from taking possession of the property and an interim injunction was granted. This seems to have continued till the 14th

March 1923. Then the respondents again applied to the District Munsif''s Court for possession being given to them, but now they are met by the

original judgment-debtors who plead that their application is barred by limitation. Both the lower Courts have rejected this contention and directed

that they should be put in possession of the property.

It is contended on behalf of the appellant who is one of the judgmentdebtors that the lower Courts are wrong in the view that they have taken. In

the first place, they have held that the present application is merely the same application as the one that was put in originally under Order 21, Rule

95, and as that application has not been disposed of they have taken the present application as a reminder to the Court that that application should

be disposed of, and have orders passed as if that application was still in force. There can be no doubt that the respondents are entitled to some

order being passed on their application which they put in originally, under Order 21, Rule 95. The appellant''s learned vakil says that that was an

application against Pethaperumal, the tenant, and that therefore, if it is to be continued at all, it should be continued against Pethaperumal only and

that his client should not be dragged into it. This, I think, is taking an incorrect view of the application under Order 21, Rule 95. What is done

under that rule is that, when the auction-purchaser has made his purchase, he seeks the Court''s help to be given possession of the property. There

is no particular individual to be treated as the respondent or counter-petitioner in that matter. It is when he goes and attempts to take possession of

the property and somebody obstructs in taking possession, that contentious proceedings between the obstructor and the purchaser arise. This is a

case of an application which has not proceeded so far. It was stopped before any order could be passed to give possession to the purchaser. It

seems to me therefore that the lower Courts were right in dealing with the present application as an application intended to bring to the notice of

the Court the existence of the previous application and praying for orders on that application. No question of limitation really then arises at all and

the fact that the judgment-debtors are now objecting to any order being passed upon the purchaser''s petition is immaterial. If they obstruct the

delivery of possession which might be ordered under O. 21, Rule 95, then contentious proceedings would arise between the purchaser and the

judgment-debtors. Till then no point arises as regards limitation.

It is also pointed out by the District Munsif that even if this application is treated as a first application under Order 21, Rule 95, made by the

purchasers, still it will be in time. The true way of looking at an application of this kind by a person to be put in possession of property after the sale

is confirmed is this: It is no doubt an application to which Article 180 of the Limitation Act would apply and the time from which the period of

limitation begins to run would be when the sale becomes absolute. Now it has been held in Muthu Korakkai Chetty v. Madar Ammal [1920] 43

Mad. 185 that where there are proceedings disputing the validity of the sale and the validity of the decree itself by attempting to set them aside the

sale could not be held to have become absolute till those proceedings are disposed of and final orders are passed in them. If that view is adopted

the time from which the period of limitation would begin to run in this case would be the 14th March 1923 and the present application will be fully

in time. The other aspect is the one noticed by the District Munsif. He says that in any case, assuming that the right to apply accrued on the date

when the sale was confirmed, still u/s 15 of the Limitation Act, the purchaser was entitled to deduction of the time during which he was restrained

by stay orders and injunctions from executing the decree. The dates given by the District Munsif are all admitted except one, the 2nd February

1921. It is contended by the learned vakil for the appellant that this date is a wrong date and that the proper date is the 10th March 1921.

The argument is that though on the 2nd February there was an order granting stay of delivery of possession it was made conditional upon

security being furnished, that the security was furnished only in March and that therefore the stay order could be taken to have been effective only

in March 1921. What appears to have happened is that a stay was granted on the 2nd February. No doubt, the Munsif made it conditional upon

security being furnished but for furnishing security a week''s time was granted. Security was tendered within that week but it was found to be

inadequate subsequently on being tested. Further security was allowed to be given and was given and accepted and the stay became unconditional

on the 10th March 1921. All the time from the 2nd February 1921 to the 10th March 1921 should also be deducted in favour of the purchaser.

Though security was finally given only on the 10th March 1921, the 2nd February was the date on which the stay was originally granted. The fact

that the conditions were fulfilled subsequently cannot alter the position.

The appellant fails on all the points taken before me. Her objection to the application being granted cannot be supported. The Civil

Miscellaneous Second Appeal is dismissed with costs.