MUTHAIAH CHETTIAR Vs. KRISHNASWAMI GOUNDER DIED

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree of Mohan, J., dated 22nd August, 1975 made in Second Appeal No. 1561 of 1971. The suit property originally belonged to the deceased first respondent and respondents 2 and 3 herein. O. S. No. 44 of 1958 was filed by one Kuppanna Gounder against Chinnaswami Gounder, the first defendant in the present suit, on the foot of a promissory note and that suit was decreed. Pending suit, the plaintiff in O. S. No. 44 of 1958, namely, Kuppanna Gounder died, and his legal representatives, namely, his son and widow were added as plaintiffs 2 and 3. In execution of the decree in E.P.R. No. 184 of 1963 the property was brought to sale in Court-auction and was purchased by the appellant herein for a sum of Rs. 6,005 on 6th February, 1964. The sale was confirmed on 5th April, 1965. When the appellant wanted to recover possession, that was obstructed by defendants 2 and 3 in the suit. Hence, the appellant filed O. S. No. 439 of 1967 on the file of the Court of the District Munsif, Erode, for delivery of possession and also for recovering past and future mesne profits. The defence put forward by the defendants was that the remedy of the auction-purchaser was only to file an application under Order 21, rule 95 of the Code of Civil Procedure for delivery of possession of the suit property and such remedy had become barred, since the appellant did not file such an application within one year from the date of the confirmation of the sale, and the suit as such was not maintainable in view of the bar under section 47 of the Code of Civil Procedure. The learned District Munsif while holding that the appellant had acquired title to the property by virtue of the sale certificate, namely, Exhibit A.1 dated 5th April, 1965, held that section 47 of the Code of Civil Procedure was not a bar to the maintainability of the suit and, therefore, decreed the suit with past mesne profits. With regard to the future mesne profits, the learned District Munsif directed the same to be decided in separate proceedings. The respondents herein filed A. S. No. 445 of 1970 on the file of the District Judge, Coimbatore East at Erode, and that appeal failed. It is thereafter the respondent preferred the second appeal before this Court Mohan, J., in the judgment under appeal held that the suit was barred under the provisions of section 47 of the Code of Civil Procedure. However, he considered the submission made on behalf of the appellant herein that the Court has the power to convert the suit into an application under section 47 and dispose of the matter. The learned Judge was willing to convert the suit into an application, but held that even as an application, the same was barred by limitation. According to the learned Judge, it is Article 134 of the Schedule to the Limitation Act 1963, that applies and as per that Article the period of limitation was one year from the date of the confirmation of the sale and in the present case the confirmation was effected on 5th April, 1965 and the suit was filed on21st March, 1967 beyond the period of one year and consequently even treating the suit as an application under section 47 of the Code of Civil Procedure, the application was barred by limitation, with the result, the learned Judge allowed the second appeal and set aside the judgments and decrees granted by the Courts below in O.S. No. 439 of 1967 and in A.S. No. 445 of 1970. However, the learned Judge granted leave to appeal, and hence the present appeal comes up for disposal.

(2.) HAVING regard to the decision of the Supreme Court in Harandrai Badridas v. Dabidull Bhagwati Prasad and others1 the learned counsel for the appellant-plaintiff does not challenge the conclusion of the learned Judge that a suit did not lie and only an application under section 47 of the Code of Civil Procedure, lay. In view of this, the only question that we have to consider is whether the conclusion of the learned Judge that even as an application under section 47, the proceedings initiated by the appellant herein were barred by limitation was corrector not. Before us, the learned counsel for the appellant contended that the Article that will apply to an application under section 47 is Article 137 of the Schedule to the Limitation Act, 1963 and not any other Article. In this context, it is relevant to consider three Articles in the Schedule to the Limitation Act, namely, Article 134, Article 136 and Article 137, and the said three Articles read as follows: Article 137 is a general and residuary Article and by its own terms will apply only to an application for which no period of limitation was provided elsewhere in the Third Division to the Schedule. Therefore, we have to find out whether there is any other Article that will apply to the application in question. The learned counsel for the appellant contended that the Article that applies to the present case is Article 136 if not Article 137. According to the learned counsel, the very decision of the Supreme Court referred to above holds that an application for delivery of possession of a property sold in execution of a decree will form part of the execution and, therefore, when the appellant applies for delivery of possession of the property, it was merely for execution of the decree and consequently Article 136 applies. A combined reading of Article 134 and Article 136 will clearly establish that even on the basis of the argument of the learned counsel for the appellant, Article 134 is a special provision, while Article 136 is a general provision. We are, for the purpose of considering this question, assuming that an application for delivery of possession of the property sold in execution of the decree can be treated as an application for execution of the decree. The learned counsel relied on the very judgment of the Supreme Court for putting forward the contention that an application for delivery of possession of the property sold in execution of the decree will also be an application for execution of the decree. We are not able to accept this argument, because the Supreme Court dealt with all the three expressions occurring in section 47 of the Code of Civil Procedure together, namely "execution", "discharge" and "satisfaction" and did not deal with the respective scope of the three expressions as between them. Whatever that may be, there can be no doubt even on the contention of the learned counsel for the appellant, Article 136 will constitute a general provision, while Article 134 will constitute a special provision, because, according to the learned, counsel, an application for delivery of possession of the property sold, is an application for execution of a decree. In other words, even on the contention of the learned counsel for the appellant that delivery of possession of the property will be comprised in the expression "execution of the decree", the inference is irresistible that Article 136 is a general provision, while Article 134 is a special provision. If so, there is no escape from holding that the special excludes the general and, therefore, Article 134 alone will apply to an application filed by a purchaser of immovable property at a sale in execution of a decree for delivery of possession of the property purchased by him.

(3.) HAVING regard to the above features, we agree with the conclusion of the learned Judge and dismiss the appeal.