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1953 DIGILAW 172 (KER)

Gopala Pillai v. Kunjan

1953-11-10

GOVINDA PILLAI

body1953
Judgment :- 1. The plaintiff is the appellant. The plaint property had been purchased by the 2nd defendant in court auction in execution of the decree in O.S. 754 of 1097 of the Changanacherry Munsiff's Court. The sale was confirmed on 10.3.1105, but delivery of possession of the property was not effected, and the first defendant was in possession of the plaint property. The plaint property and other properties were hypothecated to the plaintiff by the 2nd defendant to secure due payment of the subscriptions in a chitty prized by him. The 2nd defendant defaulted payment of subscription from the fifth drawing. Under the provisions in the chitty security bond and the agreement between the parties the plaintiff was entitled to get possession of the property from the 1st defendant. The suit was for that purpose. 2. The suit was not filed within 12 years of the date of the confirmation of the sale. It was stated in the plaint that because of a stay order from the District Court, Kottayam, restraining the delivery of possession of the property, there would be no limitation for the suit. 3. The 1st defendant had raised several contentions in the case of which one alone was gone into by the courts below. That is the one relating to limitation. The date on which the sale became absolute was 10.3.1105. But this suit was filed only on 6.1.1118 and so under Art. 126 of the Limitation Act (Travancore) corresponding to Art. 138 of the Indian Act, the suit was held to be barred by limitation. In O.S. 754 of 1097, a petition was filed by the 4th defendant there to set aside the ex-parte decree. That had been dismissed by the trial court. Against that order an appeal CMA 85 of 1107 had been filed before the District Court, Kottayam. An order staying further execution of the decree had been issued by the District Court. This order was in force from 3.3.1108 till 32.12.1108. The plaintiff's contention was that the period of the stay should be excluded from the 12 years prescribed by the Article mentioned above. The lower courts found that this period could not be excluded. Therefore the only question before me relates to that finding of the lower court. 4. The period is sought to be excluded by invoking the aid of S.15 of the Limitation Act. The lower courts found that this period could not be excluded. Therefore the only question before me relates to that finding of the lower court. 4. The period is sought to be excluded by invoking the aid of S.15 of the Limitation Act. In computing the period of limitation prescribed for any suit or application, for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded. Art. 126 of the Travancore Act corresponding to Art. 138 of the Indian Act prescribed that a suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was in possession at the date of the sale should be filed within 12 years of the date when the sale became absolute. Admittedly there was no injunction restraining the plaintiff or his predecessor in interest, who is the 2nd defendant, from instituting the suit. So, strictly this Section will not apply. The appellant's stand was that there was a stay from the District Court restraining further execution of the decree and so, during that period, it was not possible for the 2nd defendant to apply to execute the decree. That would be perfectly a sound argument if, instead of the suit, it was an application in execution for possession under Art. 164 (Art. 180 of the Indian Code). Art. 180 provides a period of three years for purchaser of immovable property at a sale in execution of a decree for delivery of possession when the sale becomes absolute. But, so long as there was no bar to the plaintiff or the 2nd defendant instituting a suit for possession under Art. 138 (Indian) the order of stay of execution could not extend the period mentioned in that Article. No doubt there was a peril in the 2nd defendant or the plaintiff instituting the suit for possession if the petition to set aside the ex parte decree in O.S. 754 of 1097 had been eventually allowed by the District Court. But, litigants purchasing property in execution will have to take such risks. No doubt there was a peril in the 2nd defendant or the plaintiff instituting the suit for possession if the petition to set aside the ex parte decree in O.S. 754 of 1097 had been eventually allowed by the District Court. But, litigants purchasing property in execution will have to take such risks. Relying on Chandra Mani Saha v. Armian Bibi, AIR 1934 PC 134, the appellant's learned Advocate contended that the principle mentioned there might be applied to the present case. In that case Their Lordships were only considering whether the period of pendency of an appeal from an order disallowing the application to set aside the court sale will be deemed to have become absolute whether it was from the date on which the execution Court confirmed the sale or the date on which final appellate Court disposed of the appeal against the order refusing to set aside the sale. It was held that where there was an appeal the sale will not become absolute within the meaning of Art. 180 until the disposal of the appeal, even though the execution court may have confirmed the sale, as he was bound to do when he disallowed the petition to set aside the sale. The underlying principle is that, when an appeal is filed against an order passed by the original court, the proceedings are continued in the appellate Court and so it is the date of the final order of the appellate court that would determine the starting point of limitation. 5. In the present case, the period sought to be excluded arose out of collateral proceedings not in any way connected with the suit as contemplated in Art. 126 (Travancore) corresponding to Art. 138 (Indian). The above decision could not have any application to the facts of the present case. Referring to Venkatadri Appa Rao v. Parthasarathi Appa Rao, AIR 1925 PC 105 = ILR 48 Mad. 312 = 52 IA 214, it was argued that it was not necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not do so. In that case the competency of a testator to execute a Will relating to certain properties had been questioned by another person and till that question was decided it was not possible for the legatees to take steps to realise the legacy. In that case the competency of a testator to execute a Will relating to certain properties had been questioned by another person and till that question was decided it was not possible for the legatees to take steps to realise the legacy. It had been held that the cause of action for suing for the legacy would arise only after the legacy became payable. In that case it was further pointed out that it was to be inferred from the terms of the Will, and the circumstances under which it was made, that the intention of the testatrix was that the legacies were not to be paid until the suit questioning her right to the property dealt in the Will had been finally determined. This case relied on an earlier decision of the Privy Council in Basu Kaur v. Dhum Singh, ILR 11 All. 47. The principle enunciated in these cases does not help the appellant in the present case. It was held in Seeni Thevar v. Ananthanarayana Aiyar,18 TLJ 888, that S.15 of the Limitation Act covered only cases where there had been an absolute stay of the suit and would not apply to cases where, in spite of the prohibitory order relied on, a suit could be filed. Here, the execution of the decree alone had been stayed by the District Court. There was no order prohibiting him from filing a suit for possession. Following Hari Mohan Dalal v. Parameswar Shaw, ILR 56 Cal. 61, it was pointed in Raman Pillai v. Govinda Pillai, 32 TLJ 659, that the Statute of Limitation, like every other Statute has to be construed and applied according to the exact and specific language of its provisions, that a saving, exception, or exclusion not found in the Statute in express terms shall not be implied, merely because that may be said to fall substantially within the reasons of the exception or exclusion expressly provided therein. So long as there was no order prohibiting the auction purchaser from instituting a suit for possession, I do not think that for a suit filed for possession under Art. 126 of the Limitation Act (Travancore), the period during which a collateral proceeding had been stayed could be excluded. I, therefore, confirm the decree passed by the Courts below and dismiss the appeal with costs. Dismissed.