NARAYANA PILLAI Vs. CHOTHI KUNJAN AND ORS.

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 Changana cherry 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 period is sought to be excluded by invoking the aid of Section 15, Limitation Act. In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded. Article 126 of the Travancore Act corresponding to Article 138 of the Indian Act prescribed that a suit by a purchaser at a sale in execution of a decree, when the judgment -debtor was in possession at the date of the sale should be filed within 12 years of the date when the sale became absolute. Admittedly, there was no injunction restraining the Plaintiff or his predecessor in interest, who is the 2nd Defendant, from instituting the suit. So, strictly this section will not apply.