ARUMUGAM Vs. M RANGASAMY

JUDGEMENT

(1.) Palani Gounder, the second respondent herein filed a money suit against Arumugam, the petitioner herein. The same was decreed. Thereafter, the decree-holder, the second respondent filed execution petition and brought the property in question for sale. Accordingly, the sale was held on 29.9.1999. Rangasamy, the first respondent herein is the auction purchaser. The sale was confirmed on 29.11.1999. Though the sale was confirmed on 29.11.1999, the first respondent/auction purchaser field an application for delivery of possession of the property only on 19.7.2002. The petitioner filed objection mainly on the ground that under Article 134 of the Limitation Act, the application has to be filed for recovery of possession within one year from the date of confirmation of sale and as such, the application for delivery of possession is barred by limitation. Rejecting the objection by the order dated 6.1.2003, the execution court ordered delivery. Hence, this civil revision petition.

(2.) The counsel for the petitioner mainly would raise two contentions: (1) The application under Order 21 Rule 35 C.P.C. would not be applicable to the auction purchaser and Order 21 Rule 95 alone would be applicable. (2) Even assuming that the application has been construed to be filed under Order 21 Rule 95, the auction purchaser would not be entitled to exclude the period of limitation under Section 15 of the Limitation Act, while computing the period of limitation for such an application under Article 134 of the Limitation Act.

(3.) Mr. Manokaran, learned counsel for the petitioner would refer to the judgments in PATTAM KHADER KHAN v. PATTAM SARDAR KHAN (1996(5)S.C.C.48=1996 II M.L.J.142), GOVINDARAO SOPANRAO KADAM v. GOPINATH (A.I.R.1994 BOMBAY 183),GANPAT SINGH v. KAILASH SHANKAR(A.I.R.1987 S.C.1443), GOVINDAN v. VENKATARAMA CHETTY (1966 I M.L.J.187), A.S.K. KRISHNAPPA v. S.V.V.SOMIAH (A.I.R.1964 S.C.227), ABDUL AZIM SAHIB v. CHOKKAN CHETTIAR (I.L.R.(1935) 58 MDS 893 F.B.) and NECKBAR v. PRAKASH NAG (A.I.R.1930 Calcutta 86) in support of his contentions.