T SANKARA MENON Vs. TVSUNDARA AIYAR

JUDGEMENT

(1.) The questions in this appeal relate to the law of limitation. On the 7 December, 1936, the respondent obtained a mortgage-decree against the appellants in the Court of the Subordinate Judge of South Malabar. On the 19 March, 1937, the decree-holder applied for the sale of one of the several properties covered by the decree. This item was sold on the 6th September, 1937, and on the 4 March, 1938, the sale was confirmed and partial satisfaction entered up. On the 6 October, 1939, the decree-holder applied for delivery of possession of the property sold. The appellants asked the decree-holder to give them time and he consented to do so. Consequently on the 16 November, 1939, this application was dismissed. On the 30 September 1940, the decree-holder filed a second application for an order directing delivery of possession of the property which he had purchased, and on the 27 November, the parties reported to the Court, that possession had been given. On the 28 August, 1941, the decree-holder filed the application which has given rise to this appeal. He applied for the sale of the remaining items of property covered by : his decree. It was contended by the appellants that the application was barred by the law of limitation. They said that the decree- holder could not rely on his applications for delivery of possession which he had filed on the 6 October, 1939, and on the 30 September, 1940. The Subordinate Judge rejected their contention, relying on the decisions of this Court in Lakshmanan Chettiar V/s. Kannammal (1900) I.L.R. 24 Mad. 185, and Kannan V/s. Avvula Haji (1926) 52 M.L.J. 1 : 50 Mad. 403.

(2.) The judgment-debtors appealed to this Court and in the first instance the appeal came before Krishnaswami Ayyangar and Kunhi Raman, JJ. As they were of the opinion that the decisions of this Court in Sultan Sahib Marakayar V/s. Chidambaram Chettiar (1908) 19 M.L.J. 224 : 32 Mad. 136, Ramaswami Aiyar V/s. Abdul Aziz Sahib (1916) 3 L.W. 191, and Nandur Subbayya V/s. Raja Venkataramayya Apparao (1917) 7 L.W. 16, were in conflict with the decisions relied upon by the Subordinate Judge, they referred the appeal to a Full Bench for decision.

(3.) The judgments in Sultan Sahib Marakayar V/s. Chidambaram Chettiar (1908) 19 M.L.J. 224 : 32 Mad. 136, Ramaswami Aiyar V/s. Abdul Aziz Sahib (1916) 3 L.W. 191, and Nandur Subbayya V/s. Raja Venkataramayya Apparao (1917) 7 L.W. 16, are not in fact really in conflict with Lakshmanan Chettiar V/s. Kannammal (1900) I.L.R. 24 Mad. 185 or Kannan V/s. Avvula Haji (1926) 52 M.L.J. 1 : 50 Mad. 403. In each of the cases relied upon by the Subordinate Judge the question was whether the application could be deemed to be a step-in-aid of execution. The decisions referred to by Krishnaswami Ayyangar and Kunhi Raman, JJ., relate to applications for execution. The present i case does not fall within those decisions. In the Full Bench case of Abdul Aziz Sahib V/s. Chokkan Chettiar . this Court held that an application for delivery could not be regarded as an application for execution and so far as we are concerned the decision must be regarded as final. The question whether the applications on which the decree-holder relies in this case amount to steps-in-aid of execution, however, remains. .