VASU PILLAI Vs. SADASIVAN

JUDGEMENT

(1.) A short but interesting question of limitation is raised in this second appeal arising in execution.

(2.) A court sale was confirmed on 12th June 1957, and on 12th December 1958 the appellant judgment debtor filed an application under S.22 of Kerala Act XXXI of 1958 for setting aside the sale. That petition was ultimately dismissed on 2nd January 1960; and thereafter, the decree holder filed the application, which has given rise to the second appeal, for delivery of possession on 15th September 1960. It was urged by the appellant that the application for delivery of possession filed more than three years after the confirmation of the sale was barred under Art.180 of the Limitation Act; and this contention has been rejected by both the lower courts.

(3.) In Aliyaru Ayyan v. Krishnan Keshavan ( 1952 KLT 110 ) a Division Bench of the Travancore - Cochin High Court has held that when a formal order of confirmation of sale is challenged by a subsequent application imperilling the fate of the confirmation, the order on the subsequent application will mark the staring point for limitation; and that the sale becomes absolute within the meaning of Art.180 of the Indian Limitation Act only when the defendants application to set aside the ex parte decree passed in the suit is dismissed. The counsel of the appellant argues that in the cited ruling the application to set aside the ex parte decree was already pending before the confirmation of the sale, so that, until that petition was disposed of, limitation could not run against delivery of possession. The counsel continues that in a case like the one before me, where the application to set aside the sale was filed after the confirmation of the sale, the decision cited above will have no application.