TAMANAPALLI VENKATALINGAM Vs. YERRA VEERASWAMI

JUDGEMENT

(1.) The facts of the case as found by the courts below are shortly these: Appellant purchased the land in dispute at the court sale held in execution of the decree in Original Suit No. 654 of 1873 on the file of the District Munsif of Narasapur. The property was put up to sale and knocked down to appellant as the highest bidder on the 20th June 1878. it was however on the 31st March 1879 that the sale was confirmed. The sale certificate bears that date whilst this suit was brought on 1st April 1891. The question for determination is whether the courts below are right in holding that the suit was barred by Article 138 of the second schedule of the Act of Limitations. For appellant plaintiff it is urged first that there is no evidence to show that the judgment-debtor was in possession of the property in dispute at the date of the court sale and that even if that Article applied the sale referred to in the third column is not the actual sale but the sale which has been confirmed and become absolute.

(2.) Article 137 premises an execution sale at the time when the judgment-debtor is out of possession and Article 138 presupposes a case in which the judgment-debtor is in possession of the property sold. According to the former the time from which the period begins to run is when the judgment-debtor becomes first entitled to possession and according to the latter time runs from the date of the sale. Referring to appellant's contention that defendants were out of possession for four years after the sale the Subordinate Judge observes that the plaint did not state so and that the allegation in the memorandum of appeal was an after-thought The first issue fixed in this case was whether the suit was barred and it was thus open to appellant to have proved that the judgment debtor had been out of possession for four years after the sale, but he tendered no evidence on the point. The onus of proof was on appellant and we cannot say that the Subordinate Judge was in error in considering his allegation as untrustworthy especially when the plaintiff himself stated before the District Munsif that he asked the defendants to quit the land in dispute until four or five years after taking the certificate and not subsequently.

(3.) The next question is whether assuming that Article 138 is applicable to this suit the claim is barred. If the word sale in the third column of that Article means actual sale the claim is clearly barred; but if it means the sale which is confirmed the suit is in time. In its plain ordinary meaning the word sale means the auction sale itself and it is used in Article 166 in that sense. Article 12 which refers to a sale that is confirmed indicates also that the legislature intentionally used the word without any qualification.