N S KARUPPANNA GOUNDER Vs. NAGAMMAL

JUDGEMENT

(1.) THE above civil revision petition was filed against an order, dated 5. 2. 1990 in unnumbered E. A. No. . . . . . . of 1989 in O. S. No. 172 of 1973 on the file of the Subordinate Court , Mayiladuthurai. THE said E. A. , for delivery was dismissed by applying the principles laid down by this Court in the decision reported in Devendra v. Badrabagu, I. L. R. (1986)2 Mad. 72 as barred by limitation. It was contended before the lower court that since delivery was already ordered within one year from the date when the sale became absolute in E. A. No. 333 of 1982, the present application was only to execute or give effect to that order of delivery and that therefore Art. i 34 of limitation Act cannot have any application, for that Article only applies to an application for delivery and it does not apply when the application had already been ordered. According to learned counsel for the petitioner, Art. 136 of the limitation Act is the proper provision to be applied because that article applies not only to a decree but also to an order of a court, which is executable as a decree. THE decision of V. Balasubramanyan, J. in the decision reported in Perumal v. Ramachandra Padayachi, (1982)1 M. L. J. 65: 94 L. W. 674 was cited by the petitioner's counsel in support of his contention. THE Lower Court however dismissed the said execution application. Aggrieved against the same, the above civil revision petition was filed by the petitioner/decree-holder.

(2.) WHEN the above civil revision petition was listed before Jagadeesan, J. the learned Judge directed the Registry to place the papers before the Honourable Chief Justice to get suitable orders to have the civil revision petition itself posted before a Division Bench, in view of the conflicting views. On 26. 3. 1996, Jagadeesan, J. passed the following order and referred the matter to a Division Bench of this court: 'The decree-holder in O. S. No. 12 of 1973 on the file of Subordinate Judge's Court, Mayiladuthurai is the petitioners and the respondents are judgment-debtors. The petitioner obtained a decree and in the execution petition, he purchased the property. The petitioner filed E. A. No. 333 of 1982 for delivery and the same was dismissed on 31. 3. 1983 though delivery was ordered by 19. 3. 1982. Subsequently, the petitioner filed several E. As. , for delivery and those applications were dismissed for non-prosecution even though delivery was ordered. The petitioner filed E. A. , in September, 1989 seeking execution of the decree for delivery of possession by appointment of a Receiver. The said application was dismissed by the lower court. Against the same, the present C. R. P. has been filed. Though the respondents had been served, they have not chosen to appear either in person or through counsel.

(3.) WE shall now refer to the first decision reported in perumal v. Ramachandra Padayachi, (1982)1 M. LJ. 65: (1981)94 L. W. 674. A money decree-holder purchased the property of the judgment-debtor in execution sale. After confirmation of sale in his favour, the decree-holder purchaser applied to the executing court for delivery of property. The said application was filed within one year from the date of the order, when the sale was made absolute. On this application of the decree-holder, the executing court ordered delivery. For some reason or other, the purchaser could not succeed in obtaining actual delivery. Ultimately, the executing court dismissed the application filed by the decree-holder. Subsequently, the auction purchaser moved the court once again for delivery. Meanwhile, more than one year had passed from the date of confirmation of sale. This time lag was taken advantage of by the judgment-debtor. He contended that the present application for delivery by the decree-holder was barred by limitation. He relied upon Art. 134 of the limitation Act, 1963. A petition was filed before this Court in order to have a pronouncement as to which was the correct view about' limitation' . It was argued on behalf of the decree-holder that the decree-holder having obtained an order for delivery, the subsequent application filed by him cannot be regarded as an application for an identical relief, viz. , for an order for delivery, for the simple reason that the court had already passed an order for delivery. It was contended that Art. 134 of the Limitation Act has no application, for that it 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. Therefore, Art. 136 of the Limitation Act is the proper Ar-, tide which prescribes the period of limitation for an application to execute either a decree or an order passed by a civil court.