SAVARIYAYI GNANAPPU Vs. THIRAVIYAM PILLAI SUBBIAH PILLAI

JUDGEMENT

(1.) This Civil Revision Petition arises from an order allowing an application of the decree holder praying for delivery of possession of immoveable property after removing obstruction by the Revision Petitioner. On the first application for delivery of possession, warrant for delivery was given but the Amin reported that possession could not be given to the decree holder in view of the obstruction by the Revision Petitioner. This was on 22.10.1954. The execution court then ordered that the decree holder should apply for removal of the obstruction and the case was adjourned to 15.12.1954 for this purpose. This order was not complied with and the application for delivery of possession was dismissed on that date. Thereafter the decree holder again applied for delivery of possession on 3.1.1955. The Amin was again obstructed on the same grounds as before and he could not effect delivery of possession. An application for removal of the obstruction was made by the decree holder on 22.3.1955. The obstructor to whom notice was given contended that she was in independent possession of the property and that the application of the decree holder was barred under Art.167 of the Indian Limitation Act. The objections were overruled and the decree holders prayer was allowed. The obstructor has preferred this Civil Revision Petition from the said order.

(2.) The only point pressed in revision is that of limitation. According to the petitioner, the decree holder has bound to apply for removal of the obstruction within thirty days of the first obstruction and having failed to do so, he was not entitled to make another application for delivery of possession. Reliance was placed on the decision of the High Court of Bombay in Mukund Babu Jadhav v. Tanu Sakhu Pawar (AIR 1933 Bom. 457) FB. This ruling supports the position contended for by the petitioner. This view is opposed to that held by the High Courts of Madras and Patna. The High Court of Travancore has in a number of reported decisions followed the view of the Madras and Patna courts. See 7 TLJ 89, 19 TLJ 649, 28 TLJ 276, 30 TLJ 496, 31 TLJ 277 and 33 TLJ 433. The decision in Official Trustee v. Monmothonath ( AIR 1953 Cal. 499 ) also supports the view held in these decisions. As Mukharji, J. pointed out in the decision of the Calcutta High Court cited above, the observations of Beaumont, C.J. in the Full Bench decision of the Bombay High Court are obiter dicta dealing with a hypothetical problem which did not arise for determination in that case. Consistent with the view held by the Travancore High Court in the several decisions mentioned above I hold that the decree holder has the right to make a fresh application for delivery of possession notwithstanding the obstruction in the first instance and that every resistance or obstruction gives a fresh period of limitation from the time of that particular resistance or obstruction. In this view, the plea of limitation must fail.