S VENKATESWARA RAO Vs. K RAMAIAH

JUDGEMENT

(1.) The order of the learned Subordinate Judge, Parchur dated 30-6-1997 is challenged by the petitioner who is the judgment-debtor in E.A.157/97 in E.A.No.224/84 in E.P.18/67concerningdecreeinO.S.No.22/65. The petitioner is the judgment-debtor whose property was sold in execution sale. After so many proceedings between the parties, wherein E.A.224/84 in E.P.18/67 filed by the auction-purchaser which was dismissed for default, came to be restored to file by an order of this Court in C.R.P.No.2495/94 dated 15-10-1996. The learned Subordinate Judge passed the impugned order directing delivery of Item-3 of the sale certificate to the respondent-auction purchaser. The flood of facts and controversies solidifies into these admitted positions. The property was sold on 6-11-1967 in favour of the respondent. E.A.796/97 was filed by the Official Receiver under Order 21, Rule 90 C.P.C. to set aside the sale which came to be dismissed on 5-7-1968. The sale was thereby confirmed by dismissing the application filed by the official receiver. The matter was taken in appeal before this Court in A.A.O.219/68 which came to be allowed on 16-8-1968 remanding the matter to the trial Court on 17-6-1969. An order passed by the learned Subordinate Judge, dated 3-12-1975 which was again challenged in A.A.O.No.25/76 before this Court was set aside and the matter was remitted back on 10-2-1978 which came to be again dismissed by the trial Court on 5-11-1983. Thereafter, the respondent filed application in E.A.224/84 for delivery of the possession of the items sold in the Court sale. Ultimately, the impugned order was passed.

(2.) Mr. Valluru, learned Advocate for the petitioner has contended that as per the settled law in Pattan Sardar Khan vs. Pattan Rasool Khan, the limitation to seek delivery of possession by the auction-purchaser commences from the date of issuing sale certificate notwithstanding certain appeals preferred by the parties, etc. According to the learned Advocate for the petitioner, the period of limitation will not stop to run and by virtue of Article 134 of the Limitation Act, 1963 (for short the Act), the period of limitation being one year ought to have exhausted by the respondent which he did not do and therefore the application for delivery of possession by 6-9-1984 was hopelessly barred by time. Mr. M. Ramaiah, learned Senior Advocate for the respondent while filing a detailed counter in form of memorandum of facts has tried to bring out two aspects namely that throughtout there was stay by way of certain orders passed by this Court till the appeal was disposed of by this Court and therefore even assuming that the period of limitation commences on the confirmation of the sale or issue of sale certificate, such a period was to be excluded and computed by virtue of Sec.l5(4) of the Act. The learned Advocate for the respondent has relied upon several precedents to show that the date of confirmation of the sale ultimately is the fixing time and for running the period of limitation for the purpose of Article 134 of the Act, the reason being that it is the order of the highest Court in the appeal etc. which becomes executable. The precedents relied upon by the learned Advocate are: Chandra Mani Saha vs. Anarjan Bibi; Sri Ranga Nilayam Rama Krishna Rao vs. Kandakori Challayamma; Kuchanpudi Sundara Rama Raju vs. Govada Parandhamayya; Ganapath Singh vs. Kailash Shankar and Bodinapalli Venkata Pitcheswara Rao vs. Munnaluri Madhava Rao (died) per L.Rs.

(3.) After hearing the learned Advocates of both sides this Court is of the considered view that the law is settled in regard to the main controversy in the case namely that it is the order of the highest Court in appeal which fixes the running of the limitation in general and in particular for an application by the auction purchaser to seek delivery of the property so purchased in auction proceedings under Article 134 of the Act and in this case, on facts, the proceedings in relation to the confirmation of sale concluded only on 5-11-1983 and therefore the application filed for delivery of possession by the respondent-auction purchaser on 6-9-1984 which is within one year from 5-11-1983 was very much within the period of limitation. While referring to the precedents of Privy Council in Chandra Mani Saha case and of the Supreme Court in Sri Ranga Nilayam Rama Krishna Rao's case, this Court in B.V. Pitcheswararao's case has authoritatively declared the law in para-17 of the judgment as follows: