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1979 DIGILAW 487 (MAD)

Kast Padayachi v. Muthukumaraswami Naldu

1979-10-31

RATNAM

body1979
Judgment :- 1. The short question that arises for consideration in this Civil Revision Petition is whether the application for delivery of possession filed by the petitioner it in time. 2. The respondent herein admittedly had borrowed moneys from E.2616. T. Palayam Rural Co-operative Agricultural Credit Society. Inasmuch as the amounts were not paid, proceedings were initiated against the respondent and an award No. 265/69-70 and 1721/69-70 was made. Execution proceedings were resorted to as the amounts remained unpaid. It is thereafter the properties of the respondent were brought to sale for the realisation of the moneys due from him. The sale was conducted by the Co-operative Sub. Registrar, (Execution and Liquidation), and Sale Officer, Cuddalore on 5th August, 1972, and the sale was knocked down in favour of the petitioner for the highest bid of Rs, 3,800. On 6th February, 1973, by his proceedings, the Joint Registrar-Chief Executive Officer and Registrar of the District South Arcot Cooperative Central Bank Ltd, Cuddalore, confirmed the sale and a sale certificate was also issued to the petitioner on 18th December, 1974. There was an appeal by the respondent herein in C.M.A. 37 of 1973 to the Cooperative Appellate Tribunal (District Court) South Arcot. During the pendency of that appeal in I.A. No. 186 of 1973 in C.M.A. 37 of 1973, delivery proceedings were stayed and the stay was finally vacated on 28th September, 1974. Thereafter an 18th July 1977, the petitioner filed on application under Or. 21 R. 95, C.P.C., in E.A. 15 of 1977 for delivery of possession of items 1 to 4 of the properties purchased by him as per the sale certificate, dt. 6th February, 1973. The principal objection that was raised by the respondent herein to this application it that it is barred by limitation. The learned District Munsif of Cuddalore who heard this application upheld the plea of the respondent and dismissed the application filed by the petitioner for delivery of possession. 3. In this Civil Revision Petition the learned counsel for the petitioner contends that the appropriate Article that would apply to a petition of this kind filed by the petitioner is Art. 137 of the Limitation Act 1963, which provides for a period of years. for making the application the terminus a quo being the accrual of the right to sue. In this Civil Revision Petition the learned counsel for the petitioner contends that the appropriate Article that would apply to a petition of this kind filed by the petitioner is Art. 137 of the Limitation Act 1963, which provides for a period of years. for making the application the terminus a quo being the accrual of the right to sue. The learned counsel for the respondent, on the other band, contends that Art. 134 of the Limitation Act of 1963 would apply and therefore, the application, having been filed more than one year after the sale had become absolute, is barred. It is not disputed that excluding the time during which the order of stay was in force, the application filed by the petitioner has been made within 3 years from the time when the sale had become absolute. It is equally not disputed that if the period for making an application of the kind resorted to by the petitioner is 3 years, then the application would be in time; but if it is one year, the application is barred. A decision on this question would depend upon a consideration of the statutory provisions under the Tamil Nadu Co-operative Societies Act (hereinafter referred to as the Act) and the Rules framed thereunder. The obtaining of an award by the Co-operative Society against the respondent is no longer in dispute. S. 91 of the Act empowers and enables the Registrar to recover sums by attachment and sale of the property. Under S. 91(a), the Registrar or any person subordinate to him and empowered by him, subject to the rules and without prejudice to other modes of recovery under the Act, recover any sum due under a decree or an order of a Civil Court, a decision or an award of the Registrar or any person subordinate to and empowered by the Registrar, etc. S. 93 is a very important provision which throws considerable light upon the powers of the statutoy functionary, viz., the Registrar or any person subordinate to him empowered by him, while exercising his powers of recovery under S. 91 (a). S. 93 is a very important provision which throws considerable light upon the powers of the statutoy functionary, viz., the Registrar or any person subordinate to him empowered by him, while exercising his powers of recovery under S. 91 (a). S. 93 is a deeming provision and when the power under the Act are exercised for recovery of any amount by the attachment and sale or by the sale without attachment of any property or when passing any orders on any application made to him for such recovery or to take some step-in-aid of such recovery, the Registrar is deemed to be a Civil Court for purposes of Art. 182 of the First Schedule to the Indian Limitation Act, 1908. Art. 182 of the Limitation Act of 1908 provided for the period within which a decree of the Civil Court not provided for by Art. 183 or by S. 48. C.P.C., could be executed. R. 56(11) of the Rules framed under the Act provides that S. 48, C.P.C., 1908 and Art. 136 of the First Schedule to the Indian Limitation Act, 1963 providing for a period of 12 years for the execution of the decree of Civil Court have been made applicable mutatis mutandis in respect of the execution of decrees, awards and orders passed under the Act and the recovery under S. 91 of any amount due under a decree or order of a Civil Court. R. 67 makes elaborate provision for the procedure in the attachment and sale of immovable property for the realisation of the moneys due under an award or decree, Under R. 69 (v), the Registrar is empowered on the confirmation of any such sale to grant a sale certificate under his seal and signature to the purchaser. R. 70 specifically provides that when a purchaser of property is resisted and prevented by any person other than a person not being the defaulter claiming in good faith to be in possession of the property in his own account from obtaining possession of the immovable property purchased, any Court of competent jurisdiction on application and production of the certificate of sale under R. 69, shall canse the proper process to be issued for the purpose of putting such purchaser in possession in the sane manner as if the immovable property purchased had been decreed to the purchaser by a decision of the Court. A careful scrutiny of the aforesaid statutory provision as well as the Rules framed thereunder, reveals that in the process of execution of the award for the realisation of the amounts due thereunder and in the holding of the sale and other related proceedings, the Registrar is deemed to be a Civil Court. Though for the aforesaid purposes, the Registrar is deemed to be a Civil Court, yet, in so far as obtaining of delivery of possession of property purchased in a sale held by the Registrar or other authorities under the Co-operative Societies Act is concerned, R. 70 treats the purchaser at such a sale as a court-auction-purchaser. That this is the intention of the rule is clear, though not very explicitly and happily expressed, and is evident from the use of the words “as if the immovable property purchased had been decreed to the purchaser by a decision of the Court.” This would mean that the property should be treated as having been purchased or acquired pursuant to a decision of the Court, viz., a decree. That would place a purchaser at a sale held by the Registrar under the provisions of the Cooperative Societies Act, on a par with a purchaser at a Court sale in execution of a decree and therefore, the appropriate Article that is applicable would be the one which provides for delivery of possession of the properties purchased at a court sale. Under Art. 180 of the Indian Limitation Act, 1908, a period of 3 years had been provided for, which has been reduced to one year, under Art. 134 of the Limitation Act, 1903. The proceedings in the instant case are governed by Art. 134 of the Limitation Act, 1963 and therefore, the application in the instant case, having been filed beyond one year, is barred. 4. A consideration of the decisions rendered in relation to the provisions of the Act and the Limitation Act also establish this. In Abdul Azim Sahif v. Chokkan Chettiar A.I.R. 1935 Mad. 803=41 L.W. 375 (F.B.) the word ‘Purchaser’ occurring in Art. 180 of the Limitation Act, 1908, has been interpreted to mean and include cases, where the decreeholder himself is the purchaser and the purchaser is not the decree-holder. It has been held that this Article applies to application for possession by a decree-holder purchaser and that the residuary Art. 181 does not apply. It has been held that this Article applies to application for possession by a decree-holder purchaser and that the residuary Art. 181 does not apply. It has also been pointed out that the application for execution and therefore, Art. 182 cannot apply. The specific Article which has been held to be applicable by the Full Bench to such cases is Art. 180. It therefore, follows that the Article which would be applicable in the light of the above interpretation of R. 70 of the Rules framed under the Act would only be Art. 180 of the Limitation Act, 1908, which corresponds to Art. 134 of the Limitation Act, 1963. The learned counsel for the respondent relied upon the decision in S. V. Subbarao v. Calicut Co-operative Urban Bank Ltd 1939 1 M.L.J. 695=49 L.W. 143. In that case, Venkataramana Rao, J., had occasion to consider the question of limitation with reference to the enforcement of awards of the Registrars functioning under the Cooperative Societies Act before the Civil Court. In construing this question, it has been held that the award of the Registrar under S. 52 of the Act is given the same status as a decree of a Civil Court for the limited purpose of execution and the law relating to enforcement of decrees of such Courts, including the Law of Limitation, will apply by necessary implication. Art. 112 of the Second Schedule of the Limitation Act, 1908, was held to be applicable to the enforcement of an award passed by the Registrar of Co-operative Societies under S. 51 of the Co-operative Societies Act, by a Civil Court, other than a High Court. On appeal against this judgment in S. V. Subba Rao v. Calicut Co-operative Urban Bank Ltd 1940 1 M.L.J. 268=51 L.W. 189, this view of the learned Judge was affirmed and Art. 182 of the Limitation Act, 1908 was held to be applicable. In the course of the judgment, the Bench observed thus— “The award when it is filed has to be executed at a decree of the court and in effect it becomes a decree of the court. As the provisions of the Civil Procedure Code admittedly apply the provisions of S. 48 of the Code must apply. In the course of the judgment, the Bench observed thus— “The award when it is filed has to be executed at a decree of the court and in effect it becomes a decree of the court. As the provisions of the Civil Procedure Code admittedly apply the provisions of S. 48 of the Code must apply. S. 48 provides that a decree shall run for a period of 12 years, provided, of course, that steps in execution are taken at intervals of not more than three years as required by Art. 182 of the Limitation Act. If S. 48 applies, it follows that the appropriate Article is 182 and not Art. 131. If Art. 182 did not apply, but Art. 181 did, there would be a conflict as Art, 181 fixes a period of 3 years and S. 48 a period of twelve years”. It was further held that in the execution of awards, there is no difference between S. 15 of the Indian Arbitration Act and Rule 15 (7) (c) of the Co-operative Societies Act that where an award has been filed in Court, it shall (unless the Court remits it for the reconsideration of the arbitrators or umpire or sets it aside) be enforceable as if it were a decree of the Court and therefore Art. 182 of the Limitation Act, 1908 will alone apply. If for purposes of execution of the award Art. 182, Limitation Act, 1908 applied, as if it is a decree, then after the purchase of the property in the course of such execution, if the purchaser wants to take possession of the property, it cannot cease to be a purchase in execution of a decree for purposes of obtaining delivery. The learned counsel for the petitioner places strong reliance upon the judgment of Happell, J. in Chirugupalli Krishna Rao, minor v. Manager, Bhaskarapuram Cooperative Society, rep. by its Manager, Bellammodi Sankararao 1944 1M.L.J. 492=57 L.W. 399. Therein, it has been held that the right to apply in execution accrued on the date of the confirmation of the sale and not from the date when the attempt of the purchaser to enter on the land was resisted and therefore, the application for delivery of possession had to be made within 3 years from the date of confirmation of the sale and therefore, the application was out of time. Art. 181 of the Limitation Act, 1908 has been applied by the learned Judge which as pointed out in the Full Bench decision in Abdul Azim Sahib v. Chokkan Chettiar A.I.R. 1935 Mad.803=42 L.W. 375 (F.B.) does not apply to an application for delivery of possession of property purchased at Court sale to which Art. 180 alone would apply. In addition, in Mohamed Amin Sahib v. Thiruvanmamalai Cooperative Society, by its Secretary, Seshachala Iyer A.I.R. 1950 Mad. 234=62 L.W. 837 it has been laid down that the application for delivery of possession would be barred if it had been filed more than three years after the date of confirmation of the sale. Obviously, this observation of the Bench is based upon Art. 180 of the Limitation Act of 1908, which would apply to applications for delivery of possession of property purchased in a court sale, as stated by the Full Bench. It is also pertinent to point out that in addition it was also admitted in that case, that Art. 180 of the Limitation Act, 1908, would apply to that case. Under Art. 180 of the Limitation Act, 1908, a period of three years was available, which has been reduced to one year under Art. 134 of the Limitation Act, 1963, and the appropriate Article applicable to the instant case is only Art. 134 of the Limitation Act of 1963. The application for delivery, having been filed more than one year after the sale had become absolute, was rightly rejected by the court below. The civil revision petition therefore fails and is dismissed. No costs.