NANDUR SUBBAYYA Vs. SRI RAJA VENKATRAMAYYA APPARAO BAHADUR

JUDGEMENT

(1.) The decree-holder having purchased the property in dispute at an execution sale, which was confirmed on 16th January 1911, applied for delivery of possession by a petition presented on the 16th April 1915. If nothing further had happened, there could be no doubt that his application was out of time, applying to it Article 180 which was for the first time enacted in the new Limitation Act and lays down a period of three years for an application by a purchaser of immoveable property at a sale in execution of a decree for delivery of possession, reckoning time from the date when the sale becomes absolute. Previously, however, to the present application the respondent had made a similar application first on the 9th November 1912 and another on the 4th December 1912, and both these petitions were dismissed by one order on the 10th December 1912, on the ground that the purchaser was unable to identify the land. A third application was put in on the 4th July 1913. On that an order was passed, Deliver , that is, deliver possession of the land , on the 7th July 1913. Then I take it that the order of the Court to deliver possession was entrusted to the amin or some other proper officer of the Court to give effect to it. On the 30th July 1913 the order passed on the petition was: "No one to take delivery. V.M. s report. Petition dismissed." The contention of the respondents is that having obtained an order from the Court for delivery of possession on the 7th July 1913, they are entitled either under Article 182 or Article 181 to come within three years of that order and to ask that it be given effect to.

(2.) There can be no doubt that it must be taken as settled, so far as this Court is concerned, on the authority of Sultan Sahib Maraknyar v. Chidambaram Chettiar 1 Ind. Cas. 998 : 32 M. 136 : 19 M.L.J. 224 : 4 M.L.T. 350, which has been followed in Ramaswami Aiyar v. Abdul Aziz Saib 32 Ind. Cas. 993 : 3 L.W. 191 : 19 M.L.T. 164 by Sadasiva Aiyar and Moore, JJ., that an application by a decree-holder purchaser for possession of the property bought by him is not an application for execution of the decree within the meaning of Article 182 and that that Article does not apply to such oases. Article 181 will apply, if Article 180 does not. Article 180 will dertainly apply, unless it can be held that the order of Court directing delivery of possession, dated the 7th July 1913, on the petition of 4th July 1913 still stands. If it does, there would be no meaning in the Court making a farther order for delivery of possession and all that would remain to be done would be the carrying out of that order by an officer of the Court In my opinion this would be no refinement of construction; on the other hand, I should think it will be quite in consonance with what must often happen, namely, that the Court, when an application is made to it under Article 180, makes an order directing delivery of possession, but the giving effect to that order is left to an officer of the Court and the order may not be carried out until long afterwards through no default of the purchaser. Once an order for deliver of possession is made by the Court, in my opinion, the purpose of Article 18 J is satisfied and the carrying out, of that order would no longer be governed by that, Article. The question to be determined, therefore, is whether the order of Court, dated the 7th July 1913, still holds good or must be taken to be cancelled by the order of the 30th July 1913.

(3.) It will be no use to review the eases as to the effect of an order of dismissal or striking off an application, which are numerous on the question as to whether such an order puts an end to an attachment or not. The question is, as stated in Subba Chariar v. Muthuveeram Pillai 14 Ind. Cas. 264 : 36 M. 556 : 24 M.L.J. 543, one of intention to be determined upon the circumstances of each case. In the present case there is nothing to show that the purchaser was heard on the 30th July 1913 or that he had any opportunity of showing cause why the order for delivery of possession, dated the 7th July 1913, should not be dismissed. The Court cannot cancel an order made in execution or otherwise in favour of a party without giving him an opportunity to be heard. I should, therefore, infer that the order ?petition dismissed. 30th July 1913" was meant for statistical purposes. In that view of the fact, the present application would merely be a continuation of the proceedings on the petition of the 4th July 1913. The present petition, which is made under Order XXI, Rule 95, no doubt does not say in so many words that what is sought is the carrying out of the order of the 7th July 1913, but simply asks for delivery of possession; but there can be no doubt that we are required to look at the substance of the proceedings and not to decide upon the mere form of the application.