C N RAMAKRISHNAN Vs. MOHAMMADKUTTY

JUDGEMENT

(1.) THE matter arises in execution. THE short question that falls for decision is whether E. A. No. 1447 of 1963 filed by the appellants who are the legal representatives of the original decree-holder is barred by limitation.

(2.) THE facts are short and not in dispute. In execution of the final decree for sale the properties were sold in court auction and were purchased by the decree-holder himself on 21-11-1955. THE sale was confirmed on 19-12-1959. THE decree holder filed E. A. 1090/61 on 16-12-1961 for delivery of possession which was allowed by the executing court; and for delivery the case was posted to 17-1-1962. Due to non-payment of batta the execution application was adjourned to 14-2-1962. On the adjourned date also no batta was paid, and consequently, E. A. 1090/61 was dismissed. THEreafter on 7-10-1963 the E. A. which gave rise to these proceedings was filed. THE prayer in the E. A. was for delivery of property and it set out the circumstances under which batta was not paid and there was a prayer for treating the relevant E. A. as a revival of E. A. 1090/61. THE executing court found that the execution application was barred by limitation by virtue of Art. 180 of the Indian Limitation Act. 1908.

(3.) YET another decision cited before us by the appellants is Seshi Ammal v. Lakshmanan Pillai (1945 TLR. 393 ). In that case the court held that when once an order for delivery has been passed under 0. 21 R. 92 there is no provision in the Code for a further application to put through the order by a warrant to the Amin and that if the decree-holder is unable to take advantage of that order on a particular date be is not prevented from taking advantage of it on a future occasion. The court proceeded on the basis that the application which led to the proceedings was substantially a reminder to the court, of the earlier application for delivery which was pending for all legal purposes. The court observed: "it is unnecessary for the purpose of this case to consider whether when once an order for delivery has been made a subsequent dismissal of the petition on the g round of default of the decree holder to pay batta or otherwise would entail the setting aside of the original order to deliver in its entirety," That exactly is the position obtained here, and consequently, this decision is not of much assistance in resolving the controversy. We are persuaded to accept the view consistently taken by the madras High Court, especially when no decision of this court was placed before us taking a different view. It follows, therefore, that it is Art. 180 of schedule I to the Indian Limitation Act 1908 that applies to the relevant execution application.