KRISHNADATTA BUJARBARUA Vs. SINDHURAM CHOUDHURY

JUDGEMENT

(1.) This is an appeal from the order of the learned Subordinate Judge, L. A. V., dated 9th February 1949 by which the order of the Sadar Munsiff, Gauhati, dated 4th September 1948, dismissing the application of the auction purchaser for delivery of possession under Order 21, Rule 85 was affirmed.

(2.) The relevant facts are as follows : The property in suit was sold in execution of a decree on 25th February 1944. The decree-holder was the auction purchaser. The sale was confirmed on 27th March 1944 evidently because no application for setting aside the sale was made within the period of 80 days under Rule 89, 90 or 91, Code of Civil Procedure. About a year later, on 26th March 1946, the judgment-debtor applied under Section 47 read with Section 151, Code of Civil Procedure., to have the sale set aside alleging that the decretal amount had been paid to the decree-holder on 27th March. 1944, just four days before the confirmation of the sale. This petition was dismissed on 4th October 1945. The judgment debtor preferred an appeal to the learned District Judge, who declined to interfere. The judgment debtor then sought to have the orders of the Courts below revised. The revision petition was also dismissed on 22nd July 1947, by the Hon'ble the Chief Justice of the Calcutta High Court. The learned Chief Justice held that the payment or the adjustment between the decree-holder and the judgment debtor was an uncertified one and therefore could not be recognised or taken notice of by reason of the provisions contained in Order 21, B. 2, Code of Civil Procedure The decree holder-auction-purchaser applied for delivery of possession on 3rd May 1948, more than three years after the original order confirming the sale, which was passed on 27th March 1944. The petition was resisted by the judgment-debtor on the ground of limitation. The plea has prevailed in the Courts below.

(3.) The decision of the appeal turns on the interpretation of Article 180 of sch. I, Limitation Act. The article in question provides a period of three years for applications for delivery of possession. The starting point for limitation, according to the article, is the date on which the sale becomes absolute. The learned Counsel for the appellant contends that the sale in this case became absolute for purposes of Article 180, Limitation Act on the date on which the petition of revision was dismissed by the Calcutta High Court. Till then the sale could not have been regarded as final for purposes of limitation as the very finality of the sale was in question. He has relied on Chandramani v. Anarjan Bibi, 1934 AIR(PC) 134, a decision of their Lordships of the Privy Council. The other cases to which we have been referred to by him are Chhogan Lal v. Behari Lal, 1933 AIR(Cal) 311 Muthu Korakki v. Mahamed Madarammal, 1920 AIR(Mad) 1 and Baijnath v. Ramgut Singh.