SULTAN SAHIB MARAKAYAR Vs. CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) The decree-holder purchased in an execution sale in 1899 certain property of the judgment-debtor and in 1900 obtained a sale certificate. The decree was not completely satisfied by the sale, and further proceedings were taken to which it is not necessary to refer, otherwise than to say that they may be taken to have arisen out of applications for execution or to take steps-in-aid of execution. Then, in 1907 the decree-holder for the first time applied for delivery of possession, of the property to which he became entitled by virtue of his sale certificate of 1900.

(2.) The question is, whether his application is within time? and the case has been argued on the footing that the answer must be in the affirmative if Art. 179 of schedule II of the Limitation Act is applicable to the case, and, in the negative, if it is not applicable, Art. 178 being in that event the appropriate article.

(3.) We are of opinion that Art. 178 is the article applicable, and that the application for delivery of possession is not one for the execution of a decree. In Muttia V/s. Appasami (1) it is true one of the learned Judges expressed an opinion that Art. 179 would decide whether an application under Section 318 of the Civil Procedure Code is or is not within time, and the other learned Judge also expressed an opinion that an application under Section 318 of the Civil Procedure Code is substantially an application for execution. But the question which they had to decide was between a period of thirty days limitation and a period of three years. Their decision on the question of limitation would have been the same had they applied Art. 178 and not Art. 179 of schedule II of the Limitation Act. We cannot, therefore, take this case as a decision on the point before us.