KANCHERLA VEERASWAMI Vs. PARAMKUSAM NAMMAYYA

JUDGEMENT

(1.) THIS appeal raises a question of limitation and it is unfortunate that the respondents do not appear. The Court below has held that the application for refund of poundage and interest on the purchase-money is barred by limitation. The application was by the auction-purchaser under Order 21, Rule 93 of the Code of Civil Procedure for refund of the poundage and interest on the, purchase- money, the actual purchase-money having been recovered by him through the Court on an earlier occasion. Apparently the lower Court was of opinion that Article 181 applied and that the starting point of limitation was the date on which the sale was set aside by the first Court, even though the decision of the first Court setting aside the sale was carried up to the High Court in appeal by not only the auction- purchaser but also by others, and the appeals were disposed of only on 6th October, 1937, though the original order of the first Court setting aside the sale was on 15 November, 1934. The appellate decision is reported in Satyanandam V/s. Nammayya (1937) 47 L.W. 51. It is not clear that Art. 181 necessarily applies to a case of this kind and that Art. 182 will have no application. It must be remembered that Art. 181 is what may be called the residuary article because the article reads as follows: Applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Civil P. C..

(2.) IT follows therefore that if Art. 182 would apply, Art. 181 cannot. IT has been held in some cases that applications for refund in circumstances like these, where a sale is set aside by the Court are in the nature of applications for restitution or, at any rate, applications in execution. For instance in the Full Bench decision in Macha Koundan V/s. Kottora Koundan , this right of the auction- purchaser to obtain a refund is described as a right to obtain a refund in execution, as distinct from a right to obtain refund by way of a separate suit. The view taken in Girdhari V/s. Sital Prasad (1889) I.L.R. 11 All. 372 appears to be undoubtedly a reasonable view even if Art. 181 is considered to be the article applicable, and Art. 182 would not apply. The sale was no doubt set aside by the executing Court, but the matter having been taken up in appeal, the right to apply for a refund could not be said to have become definite or conclusive so long as the validity of the sale remained sub judice and pending decision of the appellate Court; on the other hand it seems hardly reasonable to require that the auction -purchaser who has appealed and who desires to contend that the sale is valid should nevertheless be bound to file an application for refund, merely because it is possible that more than three years would be taken for the decision of the appeal. On the whole we are of opinion that the more reasonable view to take in a case of this description is to take as the starting point the date of the appellate Court's decree. If so, it follows that the application is not barred by time. The appeal is accordingly allowed and the petition is directed to be restored to file and dealt with according to law. The appellant is entitled to his costs in this Court; the costs in the Court below should be provided for in the revised order of the lower Court.