APPAVOO NAINAR Vs. LAKSHMANA REDDI

JUDGEMENT

(1.) The respondent is a judgment-creditor who purchased in Court sale certain properties which he had brought to sale under his decree. His sale was confirmed on 30 August, 1921 and he got possession of some of the properties. On a delivery petition filed by him on 22nd September, 1921. Item 6, however, a house, was not delivered. On 23 September, 1924, he put in another delivery petition stating that the house in question and the garden attached thereto could not be delivered to him in the previous delivery order as the said house was locked and the house and garden were in the possession of the judgment-debtors. The order passed on this was "Deliver 9-12-1924" and is dated 13 November, 1924.

(2.) On 11 March, 1926, he put in another petition wherein he stated that even though order for delivery was sent, he could not get possession from the defendants as the said house was under lock and key and was still under lock and key. This execution petition was dismissed as time-barred on the authority of Sree Rajah Vadrevu Viswasundara Rao V/s. Vannam Paidigadu (1925) 50 M.L.J. 72 which held that Art. 180 of the Limitation Act applied to such a case and that the application being made more than three years after the date of sale was time- barred. The present application was filed on 3 March, 1927. It was allowed by the learned District Munsif who relied on Kannan V/s. Avvulla Haji (1926) I.L.R. 50 Mad. 403 : 50 M.L.J. 1 and on Varadaraja Mudali V/s. Murugesam Pillai (1915) I.L.R. 39 Mad. 923 at 926 : 30 M.L.J. 460. The order was confirmed in appeal by the learned Subordinate Judge and against this the present appeal is filed by the legal representative of one of the judgment-debtors. Two questions arise for consideration: (1) Is the present application per se barred by limitation? (2) If it is not per se barred, is it barred on the principle of "res judicata" by the decision on the execution petition presented on 11 March, 1926?

(3.) I will deal with the latter point first. The learned Subordinate Judge held that it was not barred on the principle of res judicata because notice had not been sent to the judgment-debtors and also because the former order had proceeded on the view of the law that then existed as to procedure and that it is laid down in Varadaraja Mudali V/s. Murugesam Pillai (1915) I.L.R. 39 Mad. 923 at 926 : 30 M.L.J. 460 that a decision especially on procedure cannot be treated as res judicata when the law relating to procedure is held to be different.