GOPALA PILLAI Vs. KUNJAN

JUDGEMENT

(1.) The plaintiff is the appellant. The plaint property had been purchased by the 2nd defendant in court auction in execution of the decree in O.S. 754 of 1097 of the Changanacherry Munsiff's Court. The sale was confirmed on 10.3.1105, but delivery of possession of the property was not effected, and the first defendant was in possession of the plaint property. The plaint property and other properties were hypothecated to the plaintiff by the 2nd defendant to secure due payment of the subscriptions in a chitty prized by him. The 2nd defendant defaulted payment of subscription from the fifth drawing. Under the provisions in the chitty security bond and the agreement between the parties the plaintiff was entitled to get possession of the property from the 1st defendant. The suit was for that purpose.

(2.) The suit was not filed within 12 years of the date of the confirmation of the sale. It was stated in the plaint that because of a stay order from the District Court, Kottayam, restraining the delivery of possession of the property, there would be no limitation for the suit.

(3.) The 1st defendant had raised several contentions in the case of which one alone was gone into by the courts below. That is the one relating to limitation. The date on which the sale became absolute was 10.3.1105. But this suit was filed only on 6.1.1118 and so under Art.126 of the Limitation Act (Travancore) corresponding to Art.138 of the Indian Act, the suit was held to be barred by limitation. In O.S. 754 of 1097, a petition was filed by the 4th defendant there to set aside the ex parte decree. That had been dismissed by the Trial Court. Against that order an appeal CMA 85 of 1107 had been filed before the District Court, Kottayam. An order staying further execution of the decree had been issued by the District Court. This order was in force from 3.3.1108 till 32.12.1108. The plaintiff's contention was that the period of the stay should be excluded from the 12 years prescribed by the Article mentioned above. The lower courts found that this period could not be excluded. Therefore the only question before me relates to that finding of the lower court.