KALI LEKSHMI Vs. KUMARA KURUP KOCHUKUNJU KURUP

JUDGEMENT

(1.) This appeal is by the 2nd defendant and the question is whether the petition for delivery in execution filed by the respondent decree holder auction purchaser is barred under Art.164, Limitation Act (Travancore) corresponding to Art.180 of the Indian Act. The courts below concurrently found against the 2nd defendant that there was no bar of limitation, and hence this appeal.

(2.) The facts are not in controversy. The execution sale took place on 9-2-1122. But the confirmation of the sale was stayed by order on the trial side pending disposal of a petition under O.9 R.13 filed by the 2nd defendant. This order was communicated on 8-3-1122. The petition under O.9 R.13 was eventually dismissed by the appellate court on 9-6-1931 and such disposal was apprised to the executing Court by the decree holder by filing a certified copy of the order on 4-12-1951. The executing court thereafter passed order on 19-1-1952 confirming the sale. The application for delivery was presented just within 3 years of this order, on 18-1-1955. The question is whether this application can be said to be filed within 6 years of the date when the sale became absolute

(3.) If the order of 19-1-1952 confirming the sale can be taken to be the order by which alone the sale became absolute, there can be no question of bar of limitation. Bat learned Counsel for the appellant 2nd defendant says that no specific order confirming the sale is necessary for purpose of the sale being absolute, so that when the O.9 R.13 petition was finally dismissed on 9-6-1951 or at any rate when the decree holder intimated to the executing court on 4-12-1951, the sale must be deemed to have become absolute. And he relied on the analogy of litigations to set aside the execution sale under O.21 R.89 or 90, 91 or S.47 C. P. C. where it has been held that for purpose of Art.180 of the Limitation Act the sale becomes absolute not on the date when the formal order of confirmation is passed but on the termination of the litigation commenced by the judgment - debtor for having the sale set aside. See Krishnadatta v. Sindhuram. A.I. R.1950 Assam 89. Reference was also made to Aiyaru-Aiyan v. Krishnan Kesavan 1952 KLT 110 where an application to set aside the ex parte decree was held sufficient to imperil the fate of the court sale in the case in favour of the decree holder for purpose of Art.164, Limitation Act (Travancore). That is to say the court sale may not be directly but even be collaterally impugned. But here we are concerned with the operative effect of an order for stay of confirmation once communicated but not effectively withdrawn. If the court that passed the order for stay dissolves the same and intimates the fact to the court concerned with the confirmation there will be no further question. In every other case the matter must depend upon the latter court to recognise for itself either the continued existence of the stay or otherwise from the information it gathers. The order specifically confirming the sale in this case, I take to be the declaration by the executing court that there is no more stay against its confirmation. I hold therefore that the court sale herein became absolute only when it was specifically confirmed on 19-1-1952.