BASAVANTAPPA Vs. DASAPPA

JUDGEMENT

(1.) The suit filed by the plaintiffs is lor partition of the plaint schedule properties and for being put in possession of such share as they are entitled to. The plaintiffs purchased the properties in execution of a decree obtained by them against a joint family, of which the defendants are members, on the foot of a hypothecation deed. The decree-holders-purchasers were put in possession of the properties on 2-1-1934. To what extent this decree was binding on the other members oi' the family was considered in 2 suits filed by some of them and it is sufficient to state that it is not disputed in this case that the share of the appellants is not affected by the sale in favour of the plaintiffs. What is however contended is that the suit filed on 2-1-1946 which is filed just within 12 years after delivery of possession, but beyond 12 years after the sale was made absolute, is barred by time as under Art. 138, Limitation Act, time for a suit for possession of properties purchased in execution of a decree when the judgment-debtor was in possession at the date of the sale is 12 years from the date when the sale becomes absolute.

(2.) The point for consideration is whether Article 138 is applicable to a case where the decree-holder-purchaser has filed a suit to obtain possession within 12 years after obtaining symbolical possession on filing an application under Order 21, Rule 95. It is to be observed that symbolical possession obtained under execution of a decree to which the person in possession is a party is as effectual as actual possession. As observed in -- '12 Mys LJ 191:

(3.) Appeal dismissed.