AI Structured Summary
Not yet generated for this judgment
Judgment
Chandra Reddy, J.—The 4th Defendant is the Appellant. He has preferred this appeal against the order of District Judge, Ncllorc, directing delivery of certain properties under Order 21, Rule 95 CPC The application drat gave rise to this appeal was filed for delivery of property which was purchased by the applicant in execution of his decree obtained on 3-1-1938 on the original side of the High Court of Madras in C. S. 72/34. The decree "was- transmitted to the District Munsif''s Court, Nellore, for execution.
Thereafter, the decree-holder put into execution this decree, brought the properties in question to sale and purchased them himself on the 28tir December 1942. Confirmation of sale took place on 4-1-1944. As he could not obtain possession of the property from the judgment-debtor he applied for delivery thereof under Order 21, Rule 95 CPC in E. A. 323 of 194G. But, possession could not be taken as the judgment-debtor caused obstruction. ; For this reason, the executing court dismissed the application on the 22nd July 1946, The application with which, we are now concerned was,filed on 4-7-47.
The Appellant resisted this application mainly on the ground that it was barred. His objection was that the case is governed by Article 180 of the Limitation Act which provided a period of three years for an application under Order 21, Rule 95, CPC from the date when the sale becomes absolute This, contention of the Appellant was negative and the property in dispute was directed to be delivered to die Respondent, auction-purchaser On appeal a this order was upheld.
In this appeal, the conclusions of the ''courts Below are challenged. It is urged by Mr. Rajeswararao that under Article 180, it is imperative on the party of the auction-purchaser to file an application within throe years of the confirmation of the sale and any application not filed within date time could not be entertained. The point, therefore, for consideration here is whether the second application filed by die Respondent beyond three years of the sale)becoming1 absolute is unsustainable.
As up porting his proposition, Mr. Rajeswara called in aid a passage in the judgment of -the Full ''Bench of the Madras High Court in Abdul Aziz Sahib and Others Vs. Chokkan Chettiar and Another, . There die main question that arise for determination was whether it was Article 180 or 182 of die Limitation Act that was applicable in drat case. The opinion of the Full Bench was that Article 180 which was a more specific article would apply to the facts of that case; on that assumption they proceeded to consider whether die application in question was barred.
In that case the decree-holder applied for delivery of certain lands and a house which were purchased by him. There was no opposition by any one with regard to the lands. But so far as the house was concerned a third party resisted the decree-holder from taking possession thereof. Despite the fact that there was no objection in regard to the lands and possession thereof could be given, the trial court dismissed that application in toto. The question was whether the subsequent application for the same purpose Could be regarded either as a continuation of die earlier petition or as a reminder to the court.
This was answered in the affirmative and it was held that_ the decree-holder was entitled to recover possession of the property concerning which there was no resistance by the judgment-debtor, but die decree-holder had no remedy in execution in respect of die share of tile third party and his only remedy was to institute a suit in that regard. Having expressed that opinion, the learned Judges proceeded to observe that "it would be desirable to make some remarks as to the procedure to be observed when a decree-holder purchaser seeks delivery of the properties purchased etc, The passage relied on by Mr. Rajeswararao occurs at the same page 905 (of ILR Mad): (at p. 808 of AIR):
Unless the executing Courts do their work very carefully, there is great danger of serious miscarriage of justice in such cases. Where a decree-holder purchaser seeks delivery of possession of an item of property and the judgment-debtor obstructs, the decree-holder should make a complaint under Order XXI, Rule 97, CPC and the matter must be disposed of in execution.
It is die last part of die passage that is relied on by Mr. Rajeswararao. I: do not think this would serve as a foundation for die contention of the counsel for die Appellant. In my opinion, these remarks could not be construed as laying down a rule that tire absence of an application under Order 21, Rule 97 CPC to remove obstruction debars die decree-holder from seeking delivery of the property if the second application is not filed within three years of tire confirmation of sale. The learned Judges were only indicating the procedure that might be usefully followed by the decree-holders when obstruction was caused and they had net in mind a case similar to the one here. In this case, the application of 1946 was dismissed for the reason that resistance was offered by the judgment-debtor. Ins such a situation, could a dismissal be regarded as a final or a judicial Order Or was it one merely made for statistical purposes?
A similar question had come up for consideration before the Madras High Court in a number of cases. The test for deciding whether the prior application should be regarded as having been finally disposed of or should be deemed to be pending was propounded by a Bench of the Madras High Court to. Viswasundara Rao v. Paidigadu, 50 Mad LJ72 (AIR. 1926 Mad 385(B). There, after deciding that die facts of the case fell within the scope of Article 180 The learned Judges considered whether the second petition for delivery of property filed, long after the expiry of the period of three years'' prescribed by Article 180 served the decree holder to obtain possession of property the learned Judges held against him for the reason that the earlier application was dismissed because he was not present to take delivery of property and this amounted to a default on his part. A passage . Occurring at page 74 (of Mad LJ): (at p. 386 of AIR) is pertinent.
Where, die court is unable to give effect to its order by reason of the absence of the Petitioner, which is bound to be present in order to take delivery,; for owing to causes over which he has control''''. It is not the duty of the court to give notice to show cause why the petition should not be dismissed) It would be different if die delivery was obstructed by the judgment-debtor owing to anything that the: judgment debtor docs or owing to causes .which are beyond the control of the auction-purchaser, the delivery is not effected, it may be said that the order for delivery remains in force and a subsequent application to execute that order is a valid application even if that application may be more than three years alter the date of the sale being made absolute.
It is clear from this passage that if the earlier application is not dismissed for default of the decree holder the order for delivery of possession would be in force and the subsequent application would, be treated as one in time. In other words, the second and application will be considered to be a reminder to the court to revive the application struck off or dismissed,
The dictum laid down therein governs the present case. This rule was followed by Anr. Bench of the Madras High Court in Ramakrishna ayya v. Venkata Subba Rao, 1954 2 Mad LJ 80: (AIR I954 Mad 831) (C). Relying on 50 Mad LJ 72 (AIR 1926 Mad 385)(B), Justice Horwill in Nalluru Kotayya (died) by his legal representatives Vs. Kolli Narayana, ,"a case the facts of which are similar to those in the instant base decided ; that notwithstanding the executive Petition was dismissed it must be deemed to be'' pending and a fresh application for delivery was only a continuation of the former one. It was "also Med by the learned judge that failure to, apply for Removal of obstruction under Order 21 Rule 97 ; did not amount to a default of the auction purchaser to necessitate the dismissal of the second petition for delivery,In: the course of the judgment, It is observed.
It has however; always been held by this Court from Muttia v. Appasami, 13 Mad 504 (E) onwards that a decree-holder is not bound to apply for removal; of (obstruction under Order 21 Rule 97 CPC and may put in, a fresh application for delivery.
The facts of that case are ad idem with those here and the doctrine of Nalluru Kotayya (died) by his legal representatives Vs. Kolli Narayana, applies this case I express my respectful accord with delivery by the executing court in E.A. No 323/46 still remains in force and the present application is not barred though filed more than three years after the confirmation of the sale for the reason that it would be treated as a reminder to court to proceed with the earlier application which was dismissed for node fault of his In the result the decision of the appellate court is affirmed and this appeal is dismissed with costs of the 1st Respondent. No leave.