KRISHNA TUKARAM Vs. MAHADEO KRISHNAJI

JUDGEMENT

(1.) A rather interesting point arises on this revision application. The facts briefly are that one Shinde filed a suit against the petitioner in 1932 and he obtained a money decree. In execution of that decree a house belonging to the petitioner was sold on July 1, 1935, and the opponent purchased the house at the auction sale. The opponent's sale was confirmed by the Court on August 31, 1936. The petitioner's son filed a suit, being suit No. 438 of 1938 against the decree- holder and the auction purchaser for a declaration that the decree and the sale of the house were not binding on him as the alienation made by the petitioner was not for legal necessity. In the suit an injunction was issued against the opponent restraining him from taking possession, of the property. On June 30, 1941, the suit was dismissed. There was an appeal to the District Court and the decree of the trial Court was confirmed in 1944. There was a second appeal to this Court and the second appeal was dismissed on January 9, 1948. The auction purchaser presented an application for possession of the property under Order 21, Rule 95, in 1936", being miscellaneous application No. 92 of 1936. The Court in which this application was pending, the Court at Wai, was burnt down and all the records had been destroyed including this application for obtaining possession under Order 21, Rule 95. On December 14, 1944, the auction purchaser applied for reconstruction of his application which had been destroyed. On March 26, 1945, the Court rejected his application and asked him to file a fresh petition. On July 22, 1949, he filed the present application from which this revision application arises. In this application, he prayed for a revival of his application No. 92 of 1936; in the alternative he applied for possession. The trial Court granted the application, and it is from that order that this revision application is preferred.

(2.) The contention of Mr. Gokhale is that the Court had no jurisdiction to permit Krishna Tukaram vs. Mahadeo Krishnaji (07.08.1951 -BOMHC) Page 3 of 4 ji (07.08.1951 -BOMHC) Page 3 of 4 application No. 92 of 1936 to be revived. He says that when the present application was made, viz.. July 22, 1949, the remedy of the auction purchaser had been barred by limitation under Article 180 and that bar could not be removed by the device resorted to by the Court of permitting the application No. 92 of 1936 being revived. One significant fact in this case is that application No. 92 of 1936 was never disposed of by the Court. It is true as Mr. Gokhale points out that under Article 180 only one application can be presented and that application must be presented within three years from the date when the sale becomes absolute. That date is August 31, 1936. Therefore, application No. 92 of 1936 was in time when it was presented. If it had been disposed of, then Mr. Gokhale is right that no fresh application could have been made after that date. Mr. Gokhale says that inasmuch as the Court refused the application of the auction purchaser to reconstruct his application of 1936 the present application in 1949 must be looked upon as a fresh application. I am not disposed to accept that contention. When the Court made the order of March 26, 1945, rejecting the application of the auction purchaser for reconstruction of his old application, the Court did not dispose of application No. 92 of 1936. It merely took the view that it was unnecessary that that application should be reconstructed and suggested to the auction purchaser that he should file a fresh application. In my opinion the application Of July 22, 1949, was a reminder (if I might use the language of the decision to which I shall pra-sently refer) to the Court that application No. 92 of 1936 remained undisposed of and should be decided.

(3.) Now, there are two decisions which on facts are much more favourable to Mr. Gokhale than the facts in this case. One is a Calcutta decision in -' Jateendrachandra Bandopadhyay v. Rebateemohan Das', AIR 1933 Cal 333