SORNAM PILLAI Vs. TIRUVAZHIPERUMAL PILLAI

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises out of an application in execution filed by the 1 respondent for delivery of the properties sold to him by the decree-holder who had herself purchased the properties in execution of a mortgage decree in O.S. No. 507 of 1911 on the fileof the District Munsif's Court of Srivaikuntam. The Court sale was held on the 12 of September 1919 and was confirmed on the 15 of October, 1919. The 1 respondent who held a mortgage over the suit properties was not a party to O.S. No. 507 of 1911. Having obtained a decree on his mortgage in a suit in which the prior mortgagee-decree-holder was not impleaded as a party, he filed an application under Order 21, Rule 90 of the Civil Procedure Code to set aside the Court sale on the 15 October, 1919. That application was dismissed on the same date. A day after the aforesaid Court sale and two days before the said application, the 1 respondent instituted O.S. No. 494 of 1919 on the file of the District Mun- sif's Court of Srivaikuntam praying for the setting aside of the Court sale in O.S. No. 507 of 1911 after declaring that the decree in that suit was not binding upon him. The said suit was eventually dismissed on the 27 of November, 1922. In the meantime he purchased the suit properties from the decree-holder in O.S. No. 507 of 1911 and presented the application which has given rise to this appeal on the 24 of January, 1923 for delivery of the properties to him,

(2.) The appellant is one of the sons of the mortgagor. He contended that the execution application was barred by limitation under Art. 180 of the Limitation Act. Accepting that contention the first Court held that, since the application dated 24 of January, 1923 was not made within three years of the date when the Court sale had become absolute on the 15 of October, 1919 as required by that article, it was time barred and dismissed it. On appeal by the 1 respondent, the learned Subordinate Judge set aside that decision holding that the 1st respondent was entitled in computing the period of limitation under Art. 180, to deduct in his favour the period during which O.S. No. 494 of 1919 (renumbered as O.S. No. 118) was pending on the file of the Additional District Munsif's Court at Tinnevelly, as the cause of action for delivery of properties was suspended during that period, i. e., from the 13th October, 1919 to the 27 of November, 1922.

(3.) It is urged before us that the Subordinate Judge's decision should be set aside because (1) no appeal lay to the Lower Court under Section 47 of the Civil P. C., and (2) under Art. 180 of the Limitation Act the respondent is not entitled to deduct in his favour the period from the 13 of October, 1919 to the 22nd November, 1922.