PERUMAL Vs. RAMACHANDRA PADAYACHI

JUDGEMENT

(1.) THESE two civil revision petitions although heard at an interval of a week or two in between are disposed of by this common judgment, considering that both of them raise an identical point of limitation. Each is a case where the holder of a money decree purchases a judgment-debtor's property in execution sale. After confirmation of the sale in his favour, the decree-holder-purchaser applies to the executing Court for delivery. The application is filed within a period of one year from the date when the sale is made absolute. This is the prescribed period for an application of this kind under Article 134 of the Schedule to the Limitation Act, 1963. On this application by the decree-holder-purchaser, the Court orders delivery. But, for some reason or other, the purchaser does not succeed in obtaining actual delivery. The delivery warrant is returned unexecuted. In the one case, the judgment-debtor makes himself scarce, and the property is found under lock and key, and the purchaser does not move the Court for an order for breaking open the lock for gaining entry. In the other case, an obstructor stands in the way of the delivery warrant being executed. Whichever be the cause, the application of the decree-holder-purchaser gets ultimately dismissed by the executing Court. Subsequently, the purchaser moves the Court once again for delivery. This time the way is clear for obtaining delivery. In the one case, the property is apparently no longer under lock and key. In the other case, the obstructor's obstruction is by then removed out of the way. Meanwhile, however, more than a year has passed since the confirmation of the sale. It is this time-lag which has been taken advantage of by the judgment-debtor in each case. His contention is that the present application for delivery filed by the decree-holder-purchaser is barred by limitation. He relies on Article 134 of the Schedule to the Limitation Act, 1963. This plea in bar has been upheld by the Court below in the first of the cases now before me. The Court which dealt with the other case, however, took a different view, holding that the subsequent application by the decree-holder-purchaser is not barred by limitation although it was filed after the expiry of one year from the date when the sale in his favour became absolute. The question for my consideration in these two revisions is which is the correct view about limitation"

(2.) THE learned Advocate-General put the case for the purchaser very simply. Much the same argument was addressed by Mr.R.S. Venkatachari for the purchaser in the other case. THE argument was based on what was common ground between the parties. In each case an application for delivery was admittedly filed in time by the decree-holder-purchaser, that is to say, within one year from the date when the sale became absoute. Admittedly, again, on that application the executing Court passed an order for delivery. Subsequently, no doubt, that application was dismissed, but the dismissal of that application did not alter the fact that the Court had in fact ordered delivery at an earlier stage. It follows that having obtained an order for delivery, the subsequent application filed by the purchaser cannot be regarded as an application for an identical relief, namely,for an order for delivery, for the simple reason that the Court had already passed an order for delivery. In these events, the application of Article 134 is out of the question. That Article only prescribes the time-limit for an application for delivery by a purchaser of an immovable property at an execution sale. It does not deal with an application filed by the purchaser to effectuate an order of delivery passed by the executing Court. In other words, the purchaser's application, which is now in question, is not an application for delivery but an application for executing the order of delivery already passed by the executing Court. In this view, Article 134 is not the governing Article. THE pertinent provision is to be found in Article 136. That Article prescribes the period of limitation for an application to execute either a decree or an order passed by a civil Court. An order for delivery passed by an executing Court is itself an executable order in the same way as a decree for possession passed by a Court in a suit for possession is an executable decree. If Article 136 is the appropriate Article, admittedly the present application is within time. Article 136 provides that an application for executing a decree of an order of a civil Court must be filed within 12 years from the date when the decree or order became executable. In this case, admittedly, the application now in question has been filed by the decree-holder-purchaser well within this period of 12 years. THEre is therefore, no question of bar of limitation. This is the line of argument pursued by the learned Advocate-General.

(3.) THE question of limitation has been discussed in all the earlier cases in the books in the context of the relevant provisions of the Indian Limitation Act, 1908. Article 182 of the first Schedule to that Act corresponds to Article 134 of the schedule to the present Limitation Act, 1963, excepting for the difference that instead of one year which is now the governing period of limitation, the Legislature had prescribed three years under the earlier statute. THEre is another and more fundamental change in the two Acts as respects the period of limitation prescribed for executing a decree or order of a civil Court. In the earlier Limitation Act, 1908, a distinction was drawn between decrees and orders of a Chartered High Court, on the one hand, and decrees and orders of other civil Courts on the other. Article 194 of the Indian Limitation Act, 1908 which prescribed the period of limitation for executing decrees and orders of civil Courts other than Chartered High Courts provided for a period of three years as a period of limitation for execution applications. But, the starting point of limitation under that Article was subject to a complicated set of rules, laid down in the third column of the Schedule. THE Article was also subject to the provisions of section 48, Civil Procedure Code " which, briefly stated, provided an over-all time-limit upto 12 years for any application in execution. THE Limitation Act of 1963 had done away with the distinction between a decree or order of the Chartered High Court and a decree or order of other Courts in the matter of execution. It had also repeated section 48 of the Code, prescribing a uniform period of 12 years as the period of limitation for all execution petitions. Notwithstanding these important changes in the statute-law, learned counsel appearing for the judgment-debtors in these cases urged that the authoritative decisions rendered by this Court under the Indian Limitation Act, 1908, would still hold good, even under the present dispensation.