MUTHUKUMARASAMIA PILLAI Vs. MUTHUSWAMI THEVAN

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal is against the order of the Lower Appellate Court declining to grant an execution application of the appellant under the following circumstances.

(2.) The appellant obtained a decree against one Muthuswami Thevan. In exection of that decree he attached certain property, brought it to sale and purchased it in Court auction himself on 6 October, 1922. He was under the bona fide impression that the property belonged to his judgment-debtor, whereas it has now turned out that it really belonged to a dayadi of the judgment-debtor of the same name. When the Court sale was confirmed, satisfaction of the decree was recorded on 8 November, 1922. Appellant, having discovered his mistake on 18 December, 1922, applied to the executing Court to have the sale and the proceedings of the Court in satisfaction set aside, and applied for further execution by way of attachment and sale of the real property of the judgment-debtor. Both the Lower Courts have held that the application is put of time, holding that the appellant cannot succeed unless he has the sale set aside under Order 21, Rule 91, Civil Procedure Code,the limitation for which application is 30 days from the date of sale under Art. 166 of the Limitation Act.

(3.) The appellant's main contention is that the execution sale being ex hypolthesi a sale of property which was not the judgment-debtor's property, is void and without jurisdiction, and therefore it is not necessary for him to set it.aside at all. If this view is negatived, then he falls back on the argument that, as his present application is an ordinary execution application, the time limit for which is three years, it is not governed by the thirty days limitation prescribed for the application under Order 21, Rule 91, Civil Procedure Code.