Vijaya vs B.M.V. Chenniya Chetty and M.V. Ramalingam

Padmini Jesudurai, J.—The following question arises for determination in the Civil Revision Petition

When immovable property has been sold made S.14 of the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act X of

1934) hereinafter referred to as the Act and an application Under S.18(1) of the Act for delivery of possession is made to a Civil Court by the

auction purchaser whether the period of limitation governing the application is Art. 134 of Schedule-I of the Limitation Act (Act 13 of 1963) and if

not whether it is Art.(sic)

Facts necessary for the disposal of the revision petition are as follows: - One K.G. Venkatappa Chetty executed a mortgage of certain items of his

property in favour of the Krishnagiri Co-operative Land Development Bank Limited, Krishnagiri. Since the mortgage amount was not paid,

proceeding were initiated under S. 13(2) of the Act. Thereafter in execution award No. C.E.P. 18 1970-71 on the file of the Registrar of the

District Krishnagiri, the property was bronchi for sale under S.14 of the Act by the Sales Officer appointed under S.22 of the Act. In the sale so

held on 27.11.1971 the 2nd respondent herein purchased one item of the mortgage property. The petitioner claiming to be a purchaser of the

above property from the original mortgagor instituted proceedings challenging the validity of the sale. After the termination of the above

proceedings, on 17.4.1973, the sale in favour of the 2nd respondent was confirmed by the Registrar of the District under S. 15(3) of the Act

thereby making the sale absolute. Even thereafter, the petitioner filed a civil suit in respect of the property seeking an injunction restraining the 2nd

respondent from interfering with his possession of the same. Finally, after the termination of the above suit, the 2nd respondent on 2.5.1975 filed an

application in E.A. No. 11 of 1977 under S.18(1) of the Act before the Court of the Subordinate Judge. Krishnagiri for delivery of the property

purchased by him. The above action of the 2nd respondent was resisted by the petitioner inter-alia that the application for deliver filed by the 2nd

respondent was barred by limitation and therefore, was not maintainable. The executing court rejected the contention of the petitioner and ordered

delivery. The appeal filed by the petitioner before the District Judge, Dharmapuri at Krishnagiri in C.M.A. No. 35 of 1977 was dismissed. Hence,

the present revision.

Thiru S. Jagadeesan, the learned counsel for the petitioner contended that it was Article 134 of Schedule I of the Limitation Act that would

apply and that the sate had been confirmed on 17.4.1973 and had therefore become absolute as stated in S.15(3) of the Act and that the

application under S.18(1) of the Act ought to have been filed within one year from 17/4/1973 and that therefore, the present application filed on

2/5/1975 was beyond the period of one year fixed under Article 134 and had therefore to be dismissed as time barred. The learned counsel relied

upon a decision of this Court rendered by Ratnam, J. in Kasi Padayachi Vs. Muthukumaraswami Naidu, , under the Tamil Nadu Co-operative

Societies Act, 1961 (Tamil Nadu Act III of 1961), hereinafter referred to as the Societies Act wherein the learned Judge after analysing the

different provisions of the Act and the Rules made thereunder held that even though the Societies Act did not explicitly make any article of the

Limitation Act applicable to an application for delivery, yet the intention of the Legislature should be taken as making Art. 134 of the Limitation

Act, 1963 applicable to such an application.

Per contra, Thiru E. Padmanabhan, the learned counsel for the 2nd respondent contended that the above decision in Kasi Padayachi Vs.

Muthukumaraswami Naidu, was rendered under the Societies Act and that therefore in view of certain provisions under the Act, which were

essentially different from the Societies Act on many respects, the above decision would not apply to a sale conducted under the Act. The learned

counsel in the alternative contended that the even if Art. 134 of the Limitation Act could be taken to apply, the sale could be said to become

absolute not merely on its confirmation under S.15(3) of the Act, but only after a finality had been reached in the various litigations that had

followed the sale and that therefore, the application for delivery was within one year of finality being reached in the above proceedings. The learned

counsel placed reliance upon certain decisions which I shall refer to later.

For easy reference, Art. 134 of Schedule 1 of the Limitation Act, 1963 could be extracted:�

Description of application . . 134. For delivery of

Period of limitation Time forpossession by a purchaser of

which period begins to run immoveable property at a sale in

execution of a decree.

. . One year . . When the sale

becomes absolute.

Similarly, the alternative

Article 137 could also be

extracted :-

Description of application . . 137. Any other application for

which no period of limitation is

provided elsewhere in this

Division.

Period of limitation Time . . Three years . . When the right

from which period begins toto apply accrues.

run

The Krishnagiri Co-operative Land Development Bank is a primary land development bank as defined in S.3, sub-section (d) of the Act. The

above definition indicates that a primary land development bank means a co-operative primary land development bank registered or deemed to be

registered under the Tamil Nadu Co-operative Societies Act, 1961 and admitted as a member of the State Land Development Bank. Sub-S. (f) of

S.3 of the Act defines Registrar as a person appointed by the State Government to be the Registrar of Co-operative Societies for the State of

Tamil Nadu under S.3 of the Societies Act or any other person on whom all or any of the powers of a Registrar are conferred under that Act.

S.38-C of the Act contains the provision which makes the Act override other laws. It is stated that the provisions of the Act shall have the effect

notwithstanding anything inconsistent therewith contained in the Tamil Nadu Co-operative Societies Act, 1961 of in any rule or by-law or in any

other law for the time being in force. It therefore follows that wherever the provisions of the Act are found to be inconsistent with the Societies Act,

the provisions of the former Act shall prevail.

According to the contention of the learned counsel for the petitioner, the order passed on proceedings taken by the Bank under S.13(2) of the

Act should be taken as a decree attracting Article 134 of the Limitation Act, If the award passed under S. 13(2) of the Act could be taken as a

decree, Article 134 of the Limitation Act would apply if not, the residuary Article 137 would apply. The term decree has nor been defined in the

Limitation Act. In the Civil Procedure Code, however, S.2(2) defines decree as a formal expression of an adjudication of a Court. The Act does

not say that the authority acting under S.13(2) is a Court. The Registrar of the District who passes an award under S.13(2) of the Act, is therefore

not a Court. This is clear from a reading of S.13(2) of the Act which lays down a procedure, which is self-contained in the Act itself for

adjudication of disputes relating to recovery of a debt. In the absence of any specific provision either in the Act or in the Societies Act or in the

Rules made under any one of the Acts to the effect that the Registrar of the District while acting under S.13(2) of the Act is a Court, the award

passed by him cannot be said to be a decree.

The further question is even though the award passed by the Registrar under the Act is not a decree, yet whether, in legal fiction, the award

passed by him could be deemed to be a decree for the purpose of limitation. In fact, in the decision referred to by the learned counsel for the

petitioner Kasi Padayachi Vs. Muthukumaraswami Naidu, , the learned Judge has held that under the Societies Act by virtue of S. 93 and also by

virtue of Rule (sic) framed under the Societies Act, though in rule is not explicitly and happily expressed should be construed that the property

purchased by an auction purchaser in a sale held under the Societies Act should be treated a having been purchased pursuant to a decision of the

Court, viz., a decree and that therefore. Article 134 of the Limitation Act, 1963 would apply. The learned counsel for the 2nd respondent

contended that the above decision rendered under the Societies Act would not apply to a sale under the Act, where on several aspects touching

recovery proceedings; for debt and execution of awards the provisions of the Act were different from the provisions in the Societies Act and in

view of the specific provision contained in S. 38-C of the Act, the provisions of the Act and the Rules framed thereunder would over-ride

provisions inconsistent in the Societies Act and that therefore, the above decision would not apply to a sale conducted under the Act in execution

of an award passed under the Act. Reference therefore could usefully be made to some of the provisions in the Societies Act which are

inconsistent with the parallel provisions in the Act.

Under the Societies Act, adjudication of several kinds of disputes is contemplated and elaborate procedure has been laid down both in the

Societies Act as well as in the Rules made thereunder. Rule 69 of the Rules framed under the Societies Act. which is more or less similar to Order

21, Rule 90 of the CPC is to the effect that a remedy is open to the decree holder or others mentioned in the rule to apply to the Registrar to have

the sale set aside on the ground of any material irregularity, mistake or fraud in publishing or conducting it. As against that, under S.21 of the Act,

there is a specific prohibition that once a sale held under S.13 of the Act has been confirmed under S. 15(3) of the Act, the title of the purchaser

could not be impeached on the ground of irregularity or impropriety in the conduct of the sale and the only remedy that would be open to an

affected party, would be to sue the Bank for damages, Then again under Rule 70 of the Societies Act where delivery of possession to a lawful

purchaser is resisted the civil court having jurisdiction to whom the party could apply, shall cause proper process to be issued for putting the

purchaser in possession in the same manner as if the immovable property purchased had been bequeathed to the purchaser by the decision of a

Court. The parallel provision in the Act, viz., S. 18, sub-S.(3) makes rules 97 to 103 of Order 21 in the I Schedule of the Civil Procedure

applicable to such cases.

The Societies Act does make reference to the applicability of the provisions of the Limitation Act to certain matters. The explanation to S.73 of

the Societies Act dealing with settlement of disputes, makes it clear that the term ''dispute'' would include a claim by a registered society for any

debt due to it from a member. Rule 56 framed under the Societies Act dealing with settlement of disputes under sub-rule (2) lays down that the

period of limitation for referring a dispute mentioned in sub-rule (1) shall be regulated by provisions of the Indian Limitation Act as if the dispute

were a suit and the Registrar, a civil Court. It is significant that the provision; of the Limitation Act are made applicable only for referring a dispute.

Similarly S.93 of the Societies Act makes Article 136 of the Limitation Act applicable to recovery of amount by attachment and sale or by sale

without attachment of any property, or when passing any order on any application made to the Registrar for such recovery or to take some step in

aid of such recovery. It is clear therefore that both for referring a dispute to the Registrar as well as for executing an award, the relevant provisions

of the Limitation Act are specifically made applicable. An application for delivery by an auction purchaser would not come under Sec.93 of the

Societies Act making Article 136 of the Limitation Act apply.

In the absence of any specific provision making Art.134 of the Limitation Act applicable to an application under S.18(1) of the Act, it has to

be seen whether the award passed by the Registrar under the Act could still be decreed to be a decree merely by reason of making certain

provisions, of the CPC applicable at different stages to execution proceedings. S.18, Sub-S.(3) of the Act makes Order 21, Rr.97 to 103

applicable to an application under S. 18(1). Similarity we also find certain other provisions in the CPC relating to procedure made applicable to

different proceedings taken under the Act as well as the Societies Act. The question would still be whether the Registrar who has passed an award

could be said to be a Court and his award a decree merely because for certain procedural matters the provisions of the CPC are required to be

followed.

The learned counsel for the 2nd respondent placed reliance upon a decision of this Court rendered in Sambasiva Mudaliar v. Panchanada Pillai

ILR 31 Mad 24, wherein an identical question relating to the provisions of the Limitation Act that would be applicable for taking delivery by a

Court auction purchaser under S.40 of the Revenue Recovery Act, came up for consideration. S.40 of the Revenue Recovery Act is identical with

R.70 of the Rules framed under the Societies Act. It was held that when provisions of the CPC were made applicable to Art. application for

delivery of property made to a civil Court all that the Legislature intended to do was to put the machinery of the civil Court in motion and enable it

to follow a procedure in execution and that would not make the law of imitation which was an entirely different field, applicable to such

proceedings. Therein it was felt that just as the character of a decree transmitted to another Court for execution retains the character of the Court

which passed the decree and not the Court to which it is transmitted for execution, the award passed by the Registrar on the basis of which a sale

had been held did not lose its initial character and would not take upon its self the character of the Court to which it was transmitted for a limited

remedy, viz., getting delivery. Under the above circumstances, it was held that the award passed by the Registrar was not a decree or an order of

a civil Court. To the same effect is another decision rendered by this Court in Krishna Rao v. Bhaskara Ruopuram Co-operative Society 57 L.W.

399- 1944 M.W.N. 526 wherein a delivery application by an auction purchaser in a sale conducted under the Societies Act was held to be

governed by Art. 181 of the Limitation Act then in force, its present parallel provision being Art. 137 of the Limitation Act, 1963. It therefore

follows that merely because certain provisions of the CPC are made applicable to the procedure to be followed at different stages by the

authorities functioning under the Act as well as the Societies Act, the Registrar who initially passed the award, would not assume the character of a

civil Court and neither would his award become a decree of a civil Court thereby attracting the provisions of Art.134 of the Limitation Act. The

decision in Kasi Padayachi Vs. Muthukumaraswami Naidu, rendered under the Societies Act would not apply to a delivery sought for on a sale

held under the Act, since the procedure relating to passing of such award and execution of such awards either by distrait or by sale is essentially

different from the provisions relating to the sale contained in the Societies Act and by virtue of S. 38-C the provisions of the Act are to override

inconsistent provisions in the Societies Act. When the Legislature by specific provisions made certain articles of the Limitation Act applicable to

certain proceedings, it should be taken that the intention of the Legislature was not to make the other provisions of the Limitation Act apply to the

other provisions even by implication. Merely by making the authorities functioning under the two Acts follow the procedure laid down for Civil

Courts in the Civil Procedure Code, the authorities would not become Courts, nor would their awards become decrees of civil Courts. Art. 134 of

the Limitation Act therefore being applicable only to decrees would not apply to an application under S.18(1) of the Act arising out of a sale held

under the Act in execution of an award passed under the Act. The residuary Art. 137 alone would be the article that would apply to such an

application.

The learned counsel for the 2nd respondent drew an analogy from the decision of Supreme Court in The Kerala State Electricity Board,

Trivandrum Vs. T.P. Kunhaliumma, wherein on application under S.51 of the Indian Electricity Act, 19(sic) claiming enhanced compensation filed

before the District Judge under S.16(5) of the above Act was held to be governed by the residuary Article 137 of the Limitation Act. The word

''Application'' in Article 137 was interpreted to include petition, original or otherwise under special laws. Article 137 prescribes a period of three

years from the date when the right accrues within which the application is required to be made. In the instant case the sale in favour of the 2nd

respondent had been confirmed only on 17.4.1973 and even in that date be taken as the date on which the right to seek delivery accrued, the

present application made by him under S.18(1) of the Act on 2.5.1975 would still be within the period of three years prescribed under Article 137

of the Limitation Act.

In view of my finding that the Article for computing the period of limitation (sic) Article 137 of the Limitation Act and that therefore the

application under Sec. 18(1) of the Act is in time, the alternative contention put forth by the learned counsel for the 2nd respondent that the sale

becomes absolute not on the date when the sale certificate is issued, but only when a finality is reached in all the litigations that followed the sale,

does not require consideration. In the result, the revision fails and is dismissed. No order as to costs.