AYYAPPY KARUNAKARAN Vs. MALLKA

JUDGEMENT

(1.) Leave granted. The appellant is the auction purchaser in execution of the decree in a sale held on 30th March, 1968. The sale was confirmed in favour of the appellant on 9th July, 1968. Soon thereafter, an application was made by the appellant for delivery of possession of the property. However, the judgment debtor filed an application for setting aside the sale and that application was allowed by the executing court on 6.2.1970. In view of the judgment - debtor's application being allowed and the sale being set aside, the appellant's application for delivery of possession was also dismissed consequentially. The appellant preferred an appeal against the executing Court's order dated 6.2.1970 setting aside the sale. That appeal was allowed by order dated 18.2.1976 and the judgment - debtor's objection to the sale was rejected. It is obvious that as a consequence of the appeal being allowed, the executing court had to proceed to take the consequential step of delivering possession of the property to the appellant on the basis of his application made earlier in this behalf. However, as a matter of abundant caution, the appellant made another application to the same effect on 29.10.1977. The executing Court allowed this application and directed delivery of possession of the property. The judgment - debtor's revision to the High Court against that order has been allowed by the impugned order dated 10th April, 1981 passed by he High Court. The High Court in substance has taken the view that the later application filed by the appellant repeating the earlier prayer for delivery of possession was barred by limitation. Hence, this appeal by special leave.

(2.) The above facts are sufficient to indicate that the impugned order made by the High Court is unsustainable. On the appeal of the appellant being allowed by order dated 18.2.1976 resulting in rejection of the judgment - debtor's objection to the sale, the logical consequence thereof was also the revival of the first application made by the appellant for delivery of possession on confirmation of thesale. This obvious fact was overlooked by the High Court in allowing the revision. Consequently, the appeal is allowed. The impugned order of the High Court is set, aside. In view of the long delay in taking the logical action of delivery of possession of the property to the appellant auction purchaser, the executing court would now proceed to perform this task at the earliest. The appellant shall also get Rs. 5,000.00 as costs from the respondents.