CHANDRAMATHI AMMA Vs. MALANADU CO OPERATIVE BANK

JUDGEMENT

(1.) The revision petitioner is the judgment debtor. The respondent, a land mortgage Bank purchased the property in enforcement of the right to recover the amounts due to the Bank. S.18 of the Cooperative Land Mortgage Banks Act, 1960 enables the Bank itself to purchase the property by such a sale. The sale was held on 14.3.1984. The sale was confirmed on 22.8.1985. A certificate in terms of S.16 of the Cooperative Land Mortgage Banks Act was issued to the respondent on 21.2.1986 (it is shown as 25.10.1985 in the order). Under S.17 of the Cooperative Land Mortgage Banks Act, 1960 the person to whom a certificate has been issued under S.16 of the Act has to apply for delivery under S.17 of the Act to the Court. Before the respondent Bank could apply for delivery in terms of S.17 of the Act, the judgment debtor filed a suit O.S. 73 of 1986 before the Munsiff's Court Devicolan. That suit was filed on 19.3.1986. The same day, an interim injunction restraining the respondent Bank from taking possession of the property was also obtained. That suit was transferred to the Munsiff's Court, Idukki and tried as O.S. 435 of 1986. That suit was ultimately dismissed on 16.10.1989. The order of injunction restraining the respondent Bank from taking delivery of the property also stood vacated that day. Thereafter on 7.6.1990, the respondent Bank filed a petition under S.17 of the Act for deli very. The judgment debtor raised a contention that the application for delivery made on 7.6.1990 was barred by limitation. According to the judgment debtor, the application for delivery was governed by Art.134 of the Limitation Act and one year having elapsed from the date of confirmation of sale, no delivery could be ordered. The respondent Bank contended that the starting point of limitation for making an application for delivery under S.17 of the Act was the date of issuance of the certificate under S.16 of the Act which was done in this case only on 21.2.1986 and that since there was an order of injunction restraining the respondent Bank from obtaining delivery by applying under S.17 of the Act from 19.3.1986 till 16.10.1989, the period during which the suit filed by the judgment debtor in that behalf was pending, the respondent Bank was entitled to exclusion of that period and on exclusion of that period, the petition for delivery filed on 7.6.1990 was in time. The executing court relying on the decision in Joseph v. Cannanore Cooperative Land Mortgage .Bank Ltd. ( 1989 (1) KLT 616 ) held that Art.134 of the Limitation Act would apply and delivery had to be sought within one year of the date of issuance of the certificate under S.16 of the Act. The executing court then found that since there was an order of injunction in O.S. 73 of 1986 in force from 19.3.1986 till 16.10.1989 which precluded the certificate holder from obtaining delivery the certificate holder was entitled to the exclusion of that period and the application for delivery made on 7.6.1990 was in time. The objection was thus overruled and delivery was ordered. It is this order that is challenged in this revision. The revision petitioner has raised the contention that the exclusion claimable by the respondent Bank because of the suit O.S. 73 of 1986, was only the period between 19.3.1986 and 16.10.1989 and the total period available would be three years six months and 27 days which could be added on to the normal period of limitation of one year. The decree holder was hence entitled to a total period of four years six months and 27 days from the date of confirmation of sale which was on 22.8.1985. The period of four years six months and 27 days expired on 19.3.1990. The execution petition was filed only on 7.6.1990, and therefore, the execution petition was barred by limitation. The learned Judge before whom the matter came up initially, referred the revision to a Division Bench on the ground that a related question was pending in C.R.P. 627 of 1994. We may notice here that by a separate order in C.R.P. 627 of 1994, ( 1999 (3) KLT 350 ) we have upheld the view of this Court in Varghese v. Muthukulam Service Cooperative Society ( 1980 KLT 400 ) and have dismissed that revision.

(2.) It is argued before us that the decision in Joseph v. Cannanore Cooperative Land Mortgage Bank Ltd. (1989 (1) KLT 616) does not lay down the correct law and the said decision requires reconsideration. We find considerable force in this submission. In that decision it was held that an application under S.17 of the Act for possession by a certificate holder, is governed by Art.134 of Limitation Act. Art.134 of the Limitation Act provides that for delivery of possession by a purchaser of immovable property at a sale in execution of a decree the period is one year from the date on which the sale becomes absolute. But, what we have here is an application for delivery by a Land Mortgage Bank which is a purchaser of the property in enforcement of an award under that Act in terms of S.17 of the Act. S.17 of the Cooperative Land Mortgage Banks Act provides that a person to whom the certificate has been issued as a purchaser under S.16 of the Act, has to apply under S.17 of the Act for delivery of property to him. That application is to be made to a Court. That application on the terms of S.17 of the Act, can be made only by a person to whom a certificate under S.16 of the Cooperative Land Mortgage Banks Act has been issued. It is therefore, clear that the date of confirmation of sale as such is not the relevant date. The relevant date would be the date on which the certificate is issued to the purchaser in terms of S.16 of that Act.

(3.) Then the question is, what is the period governing the application made under S.17 of the Cooperative Land Mortgage Banks Act. Art.134 of the Limitation Act can apply only when the purchaser of immovable property at a sale held in execution of a decree, applies for delivery of possession. A person who applies for delivery under S.17 of the Cooperative Land Mortgage Banks Act, 1960 is not a purchaser of immovable property at a sale in execution of a decree. The right to apply for delivery in a person to whom the certificate has been issued under S.16 of the Act is conferred by S.17 of the Act. The application therefore, is under S.17 of the Act, to a civil court. There is no specific article in the Limitation Act which applies to such an application. But since the application is made to a civil court, it is clear from the decision of the Supreme Court in Kerala State Electricity Board v. T.P.K. ( 1976 KLT 810 (SC)) that the residuary Article, namely Art.137 of the Limitation Act would apply to such an application. The period available under Art.137 of the Limitation Act is three years from the date when the right to apply accrues. The right to apply accrues under S.17 of the Act, on the issuance of a certificate to the purchaser in terms of S.16 of the Act. Since even going by the contention of the revision petitioner the application for delivery has been made within three years of the issuance of the certificate to the purchaser in terms of S.16 of the Act, after the exclusion, the application for delivery is well within time.