Aiyaru Ayyan v. Krishnan Kesavan — 1951 DIGILAW 145 (KER)

Judgment :- 1. This second appeal is by a decree-holder-purchaser. His application to obtain delivery of the property purchased by him at the court auction sale held in execution of the decree he obtained against the respondent was found to be out of time and barred under Art. 164 of the Travancore Limitation Act, VI of 1100, by the learned District Munsiff of Alleppey before whom that application was made. On appeal the learned Second Judge of Alleppey confirmed the Munsiff's decision. This second appeal is brought against these concurrent orders. 2. Art.164 of the Travancore Limitation Act is in the same terms as Art. 180 of the Indian Limitation Act, IX of 1908. It provides that a purchaser of immovable property at a sale in execution of a decree for delivery of possession, must make the application within three years from the time when the sale becomes absolute. To ascertain when the sale becomes absolute we have to look to the provision in O. XXI R. 89(1), Civil Procedure Code (Travancore) which so far as is relevant for our present purpose is the same as that enacted by R. 92(1) of O. XXI, Civil Procedure Code Act, V of 1908. The said sub-rule states as follows: "Where no application is made under Rr. 86, 87 or 88 or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute". R.86, 87 and 88 correspond respectively to Rr. 89, 90 and 91 of the Indian Code. 3. In this case there was no application to set aside the sale and the order confirming the sale was passed by the Court on 22.2.1121. The appellant's application to obtain delivery of possession was filed only on 8.5.1124 when more than three years had clearly elapsed after the sale was confirmed. The confirmation was made when an application filed on 2.1.1121 to set aside the ex-parte decree passed in the suit was pending and that application was not disposed of until 30.3.1124. The argument that was raised in the Courts below and repeated before us against the contention that the application was time barred was that the sale cannot be held to have become absolute within the intendment of Art. 164 before the date on which the application to set aside the exparte decree was disposed of. The argument that was raised in the Courts below and repeated before us against the contention that the application was time barred was that the sale cannot be held to have become absolute within the intendment of Art. 164 before the date on which the application to set aside the exparte decree was disposed of. It is conceded that the Limitation Act contains no provision for exclusion of time occupied by the pendency of the petition to set aside the exparte decree. S.16 of the Travancore Limitation Act though wider in scope than the corresponding S. 16 of the Indian Limitation Act only provides for the exclusion of time during which proceedings to set aside execution sale are pending. Under the Indian Limitation Act such exclusion is permissible only for a suit for possession by a purchaser in execution of a decree and not for an application for possession. The Travancore section extends the scope of the exclusion to an application for possession also. However even under that law the exclusion relates only to the time during which a proceeding to set aside an execution sale is pending and does not refer to a proceeding to set aside a decree. It is also conceded that no equitable grounds for the suspension of the right to apply to obtain possession can be added to the provisions of the Limitation Act. The appellant's case must therefore stand or fall on the construction that he seeks to put on the words "when the sale becomes absolute" occurring in column 3 of Art. 164 (Indian Art. 180). 4. Courts have given a liberal construction to those words. Decided cases have held that notwithstanding a formal order of confirmation passed under R. 92(1) of O. XXI (Act V of 1908) when there happens to be a subsequent order affirming the sale wholly or in part in a proceeding started thereafter the sale can be said to have become absolute within the meaning of the article only from the date of the subsequent order. Muthu Korakkai Chetty v. Madar Ammal - (1920) I.L.R. 43 Mad. 185 (F.B.); Chandra Mani v. Anarjan Bibi - A.I.R. 1935 P.C.134 and Krishnadatta v. Sindhuram - A.I.R. 1950 Assam 89. Muthu Korakkai Chetty v. Madar Ammal - (1920) I.L.R. 43 Mad. 185 (F.B.); Chandra Mani v. Anarjan Bibi - A.I.R. 1935 P.C.134 and Krishnadatta v. Sindhuram - A.I.R. 1950 Assam 89. In the first of these cases the sale was in due course confirmed on the expiration of 30 days from the date of the sale as there was no application at all to set it aside. Later on, but within three years of the confirmation, the Court entertained an application for setting aside the sale on the ground of fraud and allowed that application in part, that is, as regards the interests of the sons of a deceased judgment-debtor, the reason given being that they had not been brought on record as the legal representatives of their deceased father, and dismissed the petition as regards the other judgment-debtors. That order was confirmed on appeal and thereupon the purchaser applied for delivery of the shares in respect of which the sale was held to be good. That application was made within three years of the order upholding the sale in part but beyond three years of the original order of confirmation. The court held that the application was not barred under Art. 180 of the Limitation Act as time should be computed from the date of the order disallowing the petition to set aside the sale wholly on the grounds of fraud and not from the date of the first confirmation. 5. In A.I.R. 1934 P.C.134 the application for delivery of possession was made beyond three years of the order dismissing the application to set aside the sale and subsequent confirmation but within three years of the appellate order affirming the lower court's decision that the sale was not liable to be set aside. It was contended that the application was barred by limitation but the Subordinate Judge repelled the contention. His decision was reversed on appeal by the High Court. The Judicial Committee set aside the High Court's decision and restored the Subordinate Judge's order. It was contended that the application was barred by limitation but the Subordinate Judge repelled the contention. His decision was reversed on appeal by the High Court. The Judicial Committee set aside the High Court's decision and restored the Subordinate Judge's order. In so doing their Lordships said as follows : "Upon consideration of the Sections and Orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale becomes absolute" in Art. 180, Limitation Act, regard must be had not only to the provisions of O. XXI, R. 92(1) of the Schedule to the Civil Procedure Code, but also to the other material Sections and Orders of the Code, including those which relate to appeals from orders made under O. XXI, R. 92(1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180, Limitation Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above mentioned application". 6. In the third case (A.I.R. 1950 Assam 89) the formal order of confirmation of an execution sale made under R. 92(1) was challenged within three years by a petition under Ss. 47 and 151, Civil Procedure Code and after a review of the earlier decisions bearing on the point, the view that when a formal order of confirmation is challenged by a subsequent application imperilling the fate of the confirmation, the order on the subsequent application will mark the starting point for limitation, was re-affirmed. 7. These no doubt are cases where the execution sales were directly impugned by applications as contemplated by the provisions of the Civil Procedure Code. We have here a case where even before a formal order of confirmation was made the defendant filed an application under O. IX R. 13, Civil Procedure Code, to set aside the exparte decree passed against him in the case. Had that application been allowed, as the purchaser in this case is the decree-holder himself, the sale would have automatically fallen to the ground. Had that application been allowed, as the purchaser in this case is the decree-holder himself, the sale would have automatically fallen to the ground. The order dismissing the defendant's application to re-open the suit was passed on 30.3.1124, and until then the sale stood in peril of being avoided. It is well-settled that an execution purchase by the decree-holder himself will automatically fail when the suit is re-opened or the decree reversed on appeal. 8. The objection raised in extending the rule of the decisions referred to above to the present case is that in each of those cases there was a proceeding directly impugning the sale and not a collateral one as we have here. The decree-holder having been the purchaser the scope of the proceeding started was indeed very wide. Had the order in that proceeding been the other way round, that is, had the suit been re-opened, the sale would have stood avoided notwithstanding the confirmation made earlier. If instead of an application to re-open the suit a petition to set aside the sale was filed on the date that application was made and that happened to be dismissed the period of limitation for the decree-holder purchaser to obtain delivery of possession would have commenced to run only from the date of that dismissal. (1920) I.L.R. 43 Madras 185 (F.B.) and A.I.R. 1950 Assam 89. On principle we are unable to find any reason to apply a different rule to the present case. In either case the application to set aside the sale was filed only after it was confirmed under R. 92(1). We have come across one case where the rule laid down in (1920) I.L.R. 43 Mad. 185 has been extended to a proceeding to set aside an ex-parte decree and even to a suit to set aside the decree. In Thayyamuthu v. Minor Odyayappan (1927) 25 L.W. (Madras) 108 - Krishnan, J. observed at p. 111 of the report as follows: "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 belongs to run would be when the sale becomes absolute. Now, it has been held in Muthu Korakkai Chetty v. Madar Ammal (1920) I.L.R. 43 Mad. Now, it has been held in Muthu Korakkai Chetty v. Madar Ammal (1920) I.L.R. 43 Mad. 185 (F.B.) that where there are proceedings disputing the validity of the sale or 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 14th March, 1923 and the present application will be fully in time". 9. The 14th March, 1923 referred to in the above extract marked the culmination of a suit to set aside the decree in which the execution sale in that case had taken place. When the decree-holder purchaser's application for delivery of the property was pending, an application was first filed to set aside the exparte decree passed in the suit. That application went up in appeal and was finally dismissed. Immediately thereafter a suit was brought to set aside the decree. That suit ended on the 14th March, 1923 and when a fresh application was filed for delivery it was contended that the application was barred by limitation. No doubt in that case the learned judge has given two or three alternative grounds to rest his decision that the application was not barred by time and the ground mentioned in the extract quoted above is only one among them. 10. The decision in 25 L.W. (Madras) 108 was given on 10th September, 1926. We are not unaware that earlier in the year on 26th February, 1926 a Division Bench of the Madras High Court had held that there was no provision of law for excluding in favour of the auction-purchaser seeking delivery of possession the period of the pendency of a suit filed by the judgment debtor to set aside the court sale. See Sornam v. Thiruvazhiperumal Pillai A.I.R. 1926 Mad. 857. With respect, we venture to observe the question is not one of exclusion of any period but when the sale can be said to have become absolute within the meaning of the relevant article of the Limitation Act. 11. See Sornam v. Thiruvazhiperumal Pillai A.I.R. 1926 Mad. 857. With respect, we venture to observe the question is not one of exclusion of any period but when the sale can be said to have become absolute within the meaning of the relevant article of the Limitation Act. 11. The rule that a formal order of confirmation made under R. 89(1) of O. XXI, Civil Procedure Code (Travancore) will not ipso facto make the sale absolute within the meaning of Art. 164, Limitation Act (Travancore) is one which has gained recognition in the Travancore High Court. See Mytheen Kunju v. Janaki Amma 1945 Travancore Law Reports 251. Thereafter confirmation of an auction-sale the purchaser and judgment-debtor agreed that on the latter paying a specified amount together with interest on a specified date, the former will surrender his rights over the property to the latter. The latter, that is, the judgment debtor committed default and when the purchaser applied for delivery of possession within three years of the date of default, but more than three years after confirmation of the sale, he was resisted by the plea that the application was barred by limitation. Following the decision of the Privy Council referred to above A.I.R. 1934 Privy Council 134 the learned judges who decided that case held that there was no bar of limitation and that the sale cannot be deemed to have become absolute within the meaning of Art. 164 until default occurred on the part of the judgment-debtor. Besides the Privy Council decision the learned judges also relied upon Janak Prasad v. Net Ram a Division Bench ruling of the Calcutta High Court reported in (1914) 22 Indian Cases 497 where the facts were almost identical. The conclusions arrived at in 1945 Travancore Law Reports 251 and 22 Indian Cases 497 could very well have been made to rest on the well-known rule that a party cannot play fast and loose with the Court. Having granted a specified time to the judgment-debtor to pay him off the purchaser could not have applied for delivery before that time expired and the judgment-debtor was precluded by his own conduct from pleading that the subsequent application for delivery was barred by time. No party will be permitted to approbate and reprobate. Having granted a specified time to the judgment-debtor to pay him off the purchaser could not have applied for delivery before that time expired and the judgment-debtor was precluded by his own conduct from pleading that the subsequent application for delivery was barred by time. No party will be permitted to approbate and reprobate. However, the view actually held in those cases was that the sale became absolute only when the judgment debtor failed to carry out the compromise arrangement. 12. Reference may be usefully made here to the decision of the Privy Council in Baijinath Sahai v. Ramgut Singh I.L.R. 23 Cal. 775. In that case the Judicial Committee was called upon to construe the words "when the sale is confirmed, or would otherwise have become final and conclusive had no such suit been brought" occurring in column 3 of Art. 12 of the Limitation Act. A sale held by the Collector was confirmed by the Commissioner on 25.1.1884 and the suit to set aside the sale was not brought until July 1887. The period of limitation prescribed by Art. 12 for such a suit is one year. On 12.8.1884 the Board of Revenue had set aside the Commissioner's order of confirmation, but the Board subsequently found that they had no jurisdiction to do that and accordingly on 21.8.1886 restored the Commissioner's order of confirmation. The suit brought within one year of the restoration of the confirmation order was held to be within time. Lord Devey who pronounced the judgment of the Board said: "Their Lordships are of opinion that there was no final, conclusive and definitive order confirming the sale, while the question whether the sale should be confirmed was in litigation, or until the order of the Commissioner of the 25th January 1884 became definitive and operative by the final judgment of the Board of Revenue on the 21st August 1886, or (in other words) that for the purpose of the law of limitation there was no final or definitive confirmation of the sale until that date". Seshagiri Ayyar, J. observed that the construction to be placed on the third column of Art. 180 of the first Schedule of the Limitation Act was concluded by this pronouncement of the Judicial Committee. Seshagiri Ayyar, J. observed that the construction to be placed on the third column of Art. 180 of the first Schedule of the Limitation Act was concluded by this pronouncement of the Judicial Committee. It is interesting to notice how the learned Judge (Seshagiri Ayyar, J.) winds up the discussion regarding the effect of the various Privy Council decisions referred to in that case on the construction to be given to the language of the third column of the First Schedule to Limitation Act. At page 213 of the report occurs the following passage: "All of them (the Privy Council) decisions referred to in the judgment) may be said to go to some extent, behind the actual words of the third column and to import into the decision considerations based on the intention of the legislature; but none of them introduces a principle which adds to or subtracts from the statutory exemptions. That is my view of the decisions of the Judicial Committee. Therefore in my opinion, the true rule deducible from these various decisions of the judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc. which are provided in the Limitation Act, the language of the third column of the First Schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party. This is a rule of construction and not a rule of law". 14. The rule enunciated in ILR 23 Cal. 775 (PC) has been applied by courts in Indian in large many cases and while it pleads for liberal construction of the language of the third column of Schedule 1 of the Limitation Act the decision in AIR 1934 PC 134 states that to determine whether a court sale has become absolute within the meaning of the words employed in the third column of Art. 180 regard must be had not only to R.92(1) of 0.21, Code of Civil Procedure but also to other provisions of the Code. 15. 15. The logical extension of the principle underlying the authorities cited in this judgment to the case on hand necessarily involves the conclusion that the sale became absolute within the meaning of Art. 164 of the Travancore Limitation Act only on 30.3.1124 when the defendant's application to set aside the ex-parte decree passed in the suit was dismissed. This view follows as a necessary corrollary from the decisions referred to. A contrary view will in our opinion lead to several anomalies. The defendant's application to set aside the ex-parte decree naturally imperilled the fate of the sale when the purchaser happened to be the decree-holder himself. 16. In the result we hold that the application for delivery of possession made on 8.5.1124 was within time and setting aside the concurrent orders of the two Courts below we allow this second appeal with costs throughout. Allowed.