ANTHONY Vs. ANTHON

JUDGEMENT

(1.) The decree holder/auction purchaser in OS 107/71 is the revision petitioner. The court sale was, on 8-10-74 and it was confirmed on 11-11-1974. The petitioner moved EA 864/75 (on 28-10-1975) for delivery, and it was ordered. In the meanwhile, the judgment debtor filed an application claiming relief under Act 30/75, but the same was dismissed on 21-1-1976. He took the matter in appeal, in AS 15/76; and it is said that there was an order of stay by the appellate court. The appeal was ultimately dismissed on 29-9-1979. In the meanwhile, the petition in the delivery matter (EA 864/75) had been dismissed by the executing court on 10-2-1976 as not pressed. More than two years after the dismissal of AS 15/76, the petitioner auction purchaser moved another application EA 1156/81 for ordering delivery as directed in EA 864/75. The executing court held, upholding the objection of the judgment debtor, that the said application of 1981 was barred by limitation, in view of Art.134 of the Limitation Act, 1963. It is the correctness of this view which is now being challenged.

(2.) Under Art.134 the period of limitation for an application for delivery by a court auction purchaser is one year from the time when the "sale becomes absolute". The confirmation of the sale here was on 11-11-1974. Even excluding the period during which AS 15/76 was pending, EA 1156/81 was filed, admittedly beyond the above one-year period. But the contention is that EA 864/75 having been filed within the time allowed by Art.134, and was dismissed when there was a stay in AS 15/76, the subsequent EA filed in 1981 could and should have been treated as a continuation of the 1975 proceedings, or as a reminder for the revival of the same, and that in this view, the plea of limitation should have been overruled.

(3.) To some extent at least the petitioner's contention seems to be supported by some of the observations of the Division Bench of the Madras High Court in Nandur Subbayya v. Venkataramayya (43 IC 155), though the Court there had proceeded on the basis that the dismissal of the first delivery petition was for statistical purposes, and without notice to the auction purchaser, and that therefore the second one, though filed out of time, could be regarded as a continuation of the first. But the view so taken did not find favour with a subsequent Division Bench decision of the same High Court, reported in Ramalinga Mudaliar v. Arunachala Mudaliar ( AIR 1926 Mad. 386 ). In the said decision, their lordships drew pointed attention to the provisions of Art.180 and 182 of the Limitation Act, 1908 and held that the theory of a decree being kept alive, by periodical applications, for the purposes of execution under Art.182, cannot be applied to applications for delivery by an auction purchaser, separately governed by Art.180. And this view was reinforced by the Full Bench decision in Abdul Aziz v. Chokkan ( AIR 1935 Mad. 803 ). Thereafter, the Madras High Court has been more or less uniformly taking the view that an application for delivery under Art.180 (corresponding to Art.134 of the 1963 Limitation Act) could not be treated as an application for the execution of a decree under Art.182 (Article 136 of the present Act), and that the concept of a "step in aid of execution" could not be applied to the former. Therefore, where an auction purchaser's application for delivery happens to be dismissed for his default, the effect of such a judicial disposal could not be got over by equating it to "striking off" the application for statistical purposes.