ITTOOP PHILIP Vs. APPUKUTTA MENON

JUDGEMENT

(1.) The fourth defendant, auction purchaser in O.S. No. 132 of 1973 of the Additional Sub Court, Parur is the revision petitioner. This revision is against the order passed on E.P. No. 533 of 1990 in the above suit. The petitioner purchased properties in Sy. Nos. 247/16, 247/14 and 247/13 having an extent of one acre and 89 cents of Vatakkekkara Village in court auction on 21-7-1981. The sale was confirmed and he was granted sale certificate. Subsequently by E.P. No. 296 of 1982 filed on 13-10-1992 he got delivery of the properties in Sy. Nos. 247/13 and 247/14 having an extent of 1 acre and 34 cents. According to him an extent of 53 cents in Sy. No. 247/16 remained to be delivered, for which he filed E.A. 63 of 1984 in E.R 296 of 1982, which was closed on 13-10-1988 with an observation that he may file a fresh execution petition for delivery. E.P. 296 of 1992 was also closed reserving his right to file a fresh execution petition. He challenged the correctness of the order in C.R.P. No. 1363 of 1989 before this court, which was dismissed on the ground that the court below had reserved to him in the impugned order his right to file a fresh execution petition and agitate his complaint as to short delivery. It was specifically stated that "the dismissal of the C.R.P. will not preclude the petitioner from filing a fresh application". Accordingly he filed E.P. 533 of 1990 seeking delivery of 53 cents in Sy. No. 247/16 but it was dismissed by the court below by the impugned order, which, it is submitted, is illegal and therefore has to be set aside.

(2.) Heard.

(3.) According to the petitioner there was a short delivery of the property purchased by him in court auction and covered by the sale certificate he had obtained. Pursuant to E.P. 296 of 1982 filed on 13-10-1982 he got delivery of only 1 acre 34 cents. He filed E.A. 63 of 1984 in the above E.P. which and the E.P. were "closed" without adjudication, reserving his right to make a fresh execution petition. Indeed the "closure" was not by way of a judicial disposal. Indeed this court also had in C.R.P. No. 1363 of 1989 filed against the above order observed that he will not be precluded from making a fresh application. In my view, E.P. 533 of 1990 filed in the context of the orders of the execution court and of this court in the C.R.P. was in fact a continuation of the E.P. filed earlier and not made afresh for a contention as to limitation, as urged, to have any relevance or force. Indeed it is the duty of the execution court to see that the properties sold and purchased by the petitioner are delivered to him in execution and consider whether his allegation as to short delivery is justified or not. The said allegation raised before the execution court was left undecided and to that extent it had failed to discharge its duty. It may not be correct to say that the present application ought to have been filed within one year of the date of disposal of the revision petition in 13-7-1989. I fail to understand how that date was at all relevant for computing the period of limitation under Art.134. I agree as submitted that, the present execution petition filed on 9-11-1990 was in continuation of or a step in aid of E.P. 296 of 1982 that was closed on 13-10-1988.