N. KARUNAMOORTHY Vs. V. MATHIAZHAGAN

JUDGEMENT

(1.) The facts in nutshell that are to be considered in the present civil miscellaneous second appeal are that on 14.05.1987, an agreement for sale was entered into between the respondent/plaintiff and the first defendant/S.Muthukrishnan. On 25.04.1988, the said property was conveyed by the first defendant in favour of the second defendant/T.Jane in Doc.No.2946/1988 at SRO, Ambattur which was marked as Ex.P3. The respondent/plaintiff instituted a suit for specific performance in O.S.No.200 of 1990 before the Sub-Court, Poonamallee, as against defendants 1 and 2/S.Muthukumar and T.Jane. The suit was decreed in favour of the plaintiff granting a relief of specific performance on 05.02.1992. The second defendant in the suit T.Jane had conveyed the said property in favour of one Sargunakumar on 21.08.1992 vide sale deed in Doc.No.8701 of 1992, SRO Ambattur.

(2.) It is pertinent to note that the property was conveyed as vacant land. Sargunakumar had obtained the building approval for construction of building in the said property on 23.12.1992. In the year 1998, the respondent/plaintiff in O.S.No.200 of 1990 filed execution petition for execution of sale deed in his favour in E.P.No. 5 of 1998. On 29.09.2000, the Sub-Court, Poonamallee, had executed the sale deed registered in favour of the respondent/plaintiff vide Document No.5430 of 2000, SRO, Ambattur. During the year 2004, due to change in the pecuniary jurisdiction of the Courts, E.P.No. 5 of 1998 was transferred to the file of the District Munsif Court at Ambattur and re-numbered as E.P.No.13 of 2004. On 19.07.2004, the suit property had been sold by Sargunakumar to the appellant. On 07.01.2005, the original sale deed was received from the Sub-Registrar Office at Ambattur and E.P.No. 13 of 2004 was closed. On 26.04.2005, the respondent/plaintiff had filed E.P.No.55 of 2005 for delivery of the suit property. On 13.02.2008, the appellant, who was the third party purchaser has filed an obstruction petition in E.A.No. 19 of 2008 in E.P.No.55 of 2005 under Order 21 Rule 97 CPC. The third party obstruction petition was dismissed on 06.02.2014 by the learned District Munsif Court at Ambattur, against which C.M.A.No.5 of 2014 was filed by the obstruction petitioner and the said appeal was also dismissed on 03.11.2014 by the Sub-Court, Poonamalee. Challenging the said two judgments, the present second appeal has been preferred.

(3.) The substantial question of law raised on behalf of the appellant is that the execution petition in E.P.No.55 of 2005 was filed after a lapse of twelve years from the date of passing of the decree in O.S.No.200 of 1990. Under Article 136 of the Limitation Act, 1963, the limitation period contemplated is twelve years. Therefore, the execution proceeding ought not to have been numbered at all. Thus, the trial Court as well as the First Appellate Court erroneously proceeded on the basis that the execution proceedings was filed within the time limit. At the outset, it is contended that the execution petition filed after a lapse of twelve years from the date of passing of the decree is not maintainable.