THAYYAMUTHU Vs. ODAYAPPAN

JUDGEMENT

(1.) In this Civil Miscellaneous Second Appeal the father of the respondents before me had obtained a decree and in execution of that decree had got certain properties sold and purchased the properties himself. He died subsequently and the respondents have taken his place now. They put in an application to the Court under Order 21, Rule 95, Civil P. C., for being put in possession of that property. At that time the only person in possession of the property was a tenant named Pethaperumal. When this application was pending and before orders could be passed on it, an application to set aside the ex-parte decree was made and a stay order was obtained. That case went up in appeal and was finally dismissed. Immediately there after another suit was brought to set aside the decree and for an injunction restraining the defendants therein, the present respondents, from taking possession of the property and an interim injunction was granted. This seems to have continued till the 14 March 1923. Then the respondents again applied to the District Munsif's Court for possession being given to them, but now they are met by the original judgment-debtors who plead that their application is barred by limitation. Both the lower Courts have rejected this contention and directed that they should be put in possession of the property.

(2.) It is contended on behalf of the appellant who is one of the judgmentdebtors that the lower Courts are wrong in the view that they have taken. In the first place, they have held that the present application is merely the same application as the one that was put in originally under Order 21, Rule 95, and as that application has not been disposed of they have taken the present application as a reminder to the Court that that application should be disposed of, and have orders passed as if that application was still in force. There can be no doubt that the respondents are entitled to some order being passed on their application which they put in originally, under Order 21, Rule 95. The appellant's learned vakil says that that was an application against Pethaperumal, the tenant, and that therefore, if it is to be continued at all, it should be continued against Pethaperumal only and that his client should not be dragged into it. This, I think, is taking an incorrect view of the application under Order 21, Rule 95. What is done under that rule is that, when the auction-purchaser has made his purchase, he seeks the Court's help to be given possession of the property. There is no particular individual to be treated as the respondent or counter-petitioner in that matter. It is when he goes and attempts to take possession of the property and somebody obstructs in taking possession, that contentious proceedings between the obstructor and the purchaser arise. This is a case of an application which has not proceeded so far. It was stopped before any order could be passed to give possession to the purchaser. It seems to me therefore that the lower Courts were right in dealing with the present application as an application intended to bring to the notice of the Court the existence of the previous application and praying for orders on that application. No question of limitation really then arises at all and the fact that the judgment-debtors are now objecting to any order being passed upon the purchaser's petition is immaterial. If they obstruct the delivery of possession which might be ordered under O. 21, Rule 95, then contentious proceedings would arise between the purchaser and the judgment-debtors. Till then no point arises as regards limitation.

(3.) It is also pointed out by the District Munsif that even if this application is treated as a first application under Order 21, Rule 95, made by the purchasers, still it will be in time. The true way of looking at an application of this kind by a person to be put in possession of property after the sale is confirmed is this: It is no doubt an application to which Art. 180 of the Limitation Act would apply and the time from which the period of limitation begins to run would be when the sale becomes absolute. Now it has been held in Muthu Korakkai Chetty v. Madar Ammal [1920] 43 Mad. 185 that where there are proceedings disputing the validity of the sale and the validity of the decree itself by attempting to set them aside the sale could not be held to have become absolute till those proceedings are disposed of and final orders are passed in them. If that view is adopted the time from which the period of limitation would begin to run in this case would be the 14 March 1923 and the present application will be fully in time. The other aspect is the one noticed by the District Munsif. He says that in any case, assuming that the right to apply accrued on the date when the sale was confirmed, still under Section 15 of the Limitation Act, the purchaser was entitled to deduction of the time during which he was restrained by stay orders and injunctions from executing the decree. The dates given by the District Munsif are all admitted except one, the 2 February, 1921. It is contended by the learned vakil for the appellant that this date is a wrong date and that the proper date is the 10 March 1921.