AIYARU AYYAN Vs. KRISHNAN KESAVAN

JUDGEMENT

(1.) This second appeal is by a decree holder-purchaser. His application to obtain delivery of the property purchased by him at the court auction sale held in execution of the decree he obtained against the respondent was found to be out of time and barred under Art. 164 of the Travancore Limitation Act, VI of 1100, by the learned District Munsiff of Alleppey before whom that application was made. On appeal the learned Second Judge of Alleppey confirmed the Munsiffs decision. This second appeal is brought against these concurrent orders.

(2.) Art.164 of the Travancore Limitation Act is in the same terms as Art. 180 of the Indian Limitation Act, IX of 1908. It provides that a purchaser of immovable property at a sale in execution of a decree for delivery of possession, must make the application within three years from the time when the sale becomes absolute. To ascertain when the sale becomes absolute we have to look to the provision in O.21 R. 89(1), Civil Procedure Code (Travancore) which so far as is relevant for our present purpose is the same as that enacted by R. 92(1) of O. XXI, Civil Procedure Code Act, V of 1908. The said sub-rule states as follows:

(3.) In this case there was no application to set aside the sale and the order confirming the sale was passed by the Court on 22.2.1121. The appellants application to obtain delivery of possession was filed only on 8.5.1124 when more than three years had clearly elapsed after the sale was confirmed. The confirmation was made when an application filed on 2.1.1121 to set aside the ex parte decree passed in the suit was pending and that application was not disposed of until 30.3.1124. The argument that was raised in the Courts below and repeated before us against the contention that the application was time barred was that the sale cannot be held to have become absolute within the intendment of Art. 164 before the date on which the application to set aside the ex parte decree was disposed of. It is conceded that the Limitation Act contains no provision for exclusion of time occupied by the pendency of the petition to set aside the ex parte decree. S. 16 of the Travancore Limitation Act though wider in scope than the corresponding S. 16 of the Indian Limitation Act only provides for the exclusion of time during which proceedings to set aside execution sale are pending. Under the Indian Limitation Act such exclusion is permissible only for a suit for possession by a purchaser in execution of a decree and not for an application for possession. The Travancore section extends the scope of the exclusion to an application for possession also. However even under that law the exclusion relates only to the time during which a proceeding to set aside an execution sale is pending and does not refer to a proceeding to set aside a decree. It is also conceded that no equitable grounds for the suspension of the right to apply to obtain possession can be added to the provisions of the Limitation Act. The appellants case must therefore stand or fall on the construction that he seeks to put on the words when the sale becomes absolute occurring in column 3 of Art. 164 (Indian Art. 180).