Mutha Pukhraj Ratanjee v. Ganesh Mull Adaji — 1982 DIGILAW 453 (MAD)

Judgment :- This civil revision petition, at the instance of the plaintiff/decree-holder/ auction-purchaser in O. S. No. 116 of 1967, City Civil Court, Madras, is directed against the order of the Court below in E. A. No. 5 of 1970 in M. C. C. C. O. S. No. 116 of 1957, dismissing an application filed by him under Order 21, rule 95, Code of Civil Procedure, praying for delivery of possession of the property. 2. The circumstances giving rise to the civil revision petition may be stated as under: The respondent herein executed a promissory note in favour of petitioner on 1st January. 1964 on the footing of which O. S. No. 116 of 1967 on the file of the City Civil Court, Madras, was instituted by the petitioner and a decree therein was also passed in his favour on 11th November, 1968. With a view to realise the amounts due under the decree so obtained, the petitioner filed on 31st August, 1970 E. P. No. 5 of 1970 for attachment and sale of the immovable property belonging to the respondent. On 5th October, 1970, the property of the respondent was attached and the petitioner after obtaining (in E. A. No. 302 of 1972) from Court leave to bid and set off, became the purchaser of the property at the sale held on 18th December, 1972. On 17th January, 1973, the respondent herein filed an application under Order 21, rule 90, Code of Civil Procedure, to set aside the sale and along with that application filed E. A. No. 82 of 1973 for accepting security. The application in E. A. No. 82 of 1973 was dismissed on 12th September, 1974, when the application to set aside the sale filed under Order 21, rule 90, Code of Civil Procedure, had remained un-numbered. Consequent to the dismissal of the application in E. A. No. 82 of 1973 on 12th September, 1974, the Court-auction-sale in favour of the petitioner was also confirmed on 12th September. 1974. Thereupon, on 10th February, 1975, the petitioner applied in E. A. No. 61 of 1975 for delivery of possession of the property purchased by him in the Court-auction-sale held on 18th December, 1972. On 13th February, 1975, on that application, delivery was ordered by 13th March, 1975. 1974. Thereupon, on 10th February, 1975, the petitioner applied in E. A. No. 61 of 1975 for delivery of possession of the property purchased by him in the Court-auction-sale held on 18th December, 1972. On 13th February, 1975, on that application, delivery was ordered by 13th March, 1975. On 13th March, 1975, since the delivery warrant was not returned, the Court directed that the delivery warrant be awaited and the matter was posted to 21st March, 1975. On 21st March, 1975, the Court passed the further order to the effect that the property was not delivered for want of police aid and breaking open of the lock. The matter was further adjourned to 2nd April, 1975, for steps. On 24th March, 1975, an application was filed by the petitioner in E. A. No. 139 of 1975 to make available police aid and that application was allowed on 2nd April, 1975, and the property was directed to be delivered by 29th April, 1975. Meanwhile, on 1st April, 1975, the respondent herein instituted O. S. No. 2408 of 1975, City Civil Court, Madras, for cancellation of the decree in O. S. No. 116 of 1967 and in I. A. No. 6767 of 1975 in O. S. No. 2408 of 1975, the respondent prayed for an interim injunction restraining the petitioner from prosecuting further proceedings in E. P. No. 5 of 1970. That matter was fixed for hearing on 15th April, 1975. However, in E. A. No. 61 of 1975, on 29th April, 1975, the Court passed the following Order: "Property not delivered as the petitioner received stay order from City Civil Court, Madras. Petition closed”. Meanwhile, on 23rd April, 1975, the respondent herein filed E. A. Nos. 180 and 181 of 1975 seeking restroration of E. A. No. 82 of 1973 dismissed on 12th September, 1974, and praying for a stay of further proceedings. Interim stay and notice was ordered on 26th April, 1975, and ultimately E. A No. 181 of 1975 was closed as unnecessary on 29th April, 1975. E. A. No. 180 of 1975 eventually was allowed on 31st August, 1976, and as a result thereof, the application filed by the respondent herein under Order 21, rule 90, Code of Civil Procedure, was taken on file on 8th September, 1976, as E. A. No. 465 of 1976 and was dismissed on the merits on 20th November, 1976. E. A. No. 180 of 1975 eventually was allowed on 31st August, 1976, and as a result thereof, the application filed by the respondent herein under Order 21, rule 90, Code of Civil Procedure, was taken on file on 8th September, 1976, as E. A. No. 465 of 1976 and was dismissed on the merits on 20th November, 1976. The petitioner on his part filed an application in September, 1978 for restoration of E. A. No. 61 of 1975, but for some reason or other, which is not quite clear, the application does not appear to have been entertained. The suit instituted on O. S. No. 2408 of 1975 was dismissed on 28th February, 1979. Again, the petitioner filed E. A. No. 653 of 1979 praying to recognise the power of attorney. The petitioner also filed E. A. No. 660 of 1979 on 20th March, 1979, for condoning the delay of 10 months and 10 days in filing the restoration application under section 5 of the Limitation Act. There was also another application filed by the petitioner on 20th March, 1979. along with E. A. No. 660 of 1979, which had remained unnumbered, for the restroration of E. A. No. 61 of 1975. The petitioner had also filed E. A. No. 512 of 1980 on 22nd April, 1980, out of which the present civil revision petition has arisen, purporting to be one for delivery of possession of the property. Against the dismissal of O. S. No. 2408 of 1975, the respondent had preferred an appeal in A. S. No. 63 of 1980 and that appeal also stood dismissed on 23rd June. 1980, and during the pendency of the appeal, in C.M.P. No. 344 of 1980, the respondent had sought for and obtained stay of all further proceedings in O. S. No. 116 of 1967. After the dismissal of the appeal, on 27th June, 1980, the petitioner withdrew E.A. No. 660 of 1979 filed under section 5 of the Limitation Act. 3. 1980, and during the pendency of the appeal, in C.M.P. No. 344 of 1980, the respondent had sought for and obtained stay of all further proceedings in O. S. No. 116 of 1967. After the dismissal of the appeal, on 27th June, 1980, the petitioner withdrew E.A. No. 660 of 1979 filed under section 5 of the Limitation Act. 3. In the affidavit filed in support of E.A. No. 512 of 1980, the petitioner had referred to the purchase of the property by him in Court-auction and the confirmation thereof on 12th September, 1974, the filing of E.A. No. 61 of 1975 for delivery of the property and the order for delivery passed therein, the institution of the suit in O. S. No. 2408 of 1975 by the respondent herein and the filing of an application therein, the closure of E.A. No. 61 of 1975 on 29th April, 1975, the proceedings initiated by the respondent herein under Order 21, rule 90, Code of Civil Procedure, and the dismissal thereof on 20th November, 1976 and stated that for no fault of his the application filed by him in E. A. No. 61 of 1975 had been closed on 29th April, 1975 and such closure should be deemed to be not on merits but only for statistical purposes and, therefore, he is entitled to file another application in the nature of a reminder to Court drawing its attention to the pendency of the application for delivery of possession and to request the Court to revive and continue the proceedings However, the 3 petttioner had prayed for the relief of delivery of the property through Court. That application was resisted by the respondent herein on the ground that the applica - tion was barred by time. The confrmation of the sale in favour of the petitioner on 12th September, 1974 and the filing of an application by the petitioner for delivery in E. A. No. 61 of 1975 and the order for delivery on 2nd April, 1975 were admitted. The posting of the case E. A- No. 61 of 1975 to 29th April, 1975 was also not denied. The posting of the case E. A- No. 61 of 1975 to 29th April, 1975 was also not denied. The respondent further pleaded that though he had taken steps to set aside the sale, there was no legal impediment of any kind which prevented the petitioner from proceeding with his application for delivery filed in E. A. No. 61 of 1975, but that the petitioner did not pursue his application. The respondent further stated that though the petitioner had filed an application to excuse the delay in E.A. No. 660 of 1979, that application was dismissed as withdrawn on 27th June, 1980 and that the present application in E.A. No. 512 of 1980 having been filed more than three years after the dismissal of the application filed by the respondent under Order 21, rule 90, Code of Civil Procedure, would also be beyond time. The obstruction to delivery in E. A. No. 61 of 1975 should have been removed through Court, according to the respondent, and for his omission to do so, the petitioner has to thank himself. The respondent also put forth the objection that under Article 134 of the Limitation Act, the application in E. A. No. 512 of 1980 was barred as it had been filed beyond six years after the confirmation of the sale. A plea that the decree itself is void was also raised by the respondent. The application filed by the petitioner was also claimed to be barred by the principles ofres-judicata or at any rate, by. constructive res-judicata. On the aforesaid grounds, the respondent prayed for the dismissal of E. A. No. 512 of 1980. 4. The learned District Judge, Chengalpattu, who enquired into this application was of the view that the endorsement made on 29th April, 1975 in E.A. No. 61 of 1975 which led to the closure of E. A. No. 61 of 1975 cannot be correct, that after the termination of the proceedings initiated by the respondent in E. A. No. 465 of 1976 under Order 21, rule 90, Code of Civil Procedure, on 20th November, 1976 there was no impediment whatever for the petitioner to take delivery of possession and that the application in E. A. No. 512 of 1980 was barred. Dealing with the question whether the application filed by the petitioner can be regarded as one for revival or continuation of the earlier application in E. A. No. 61 of 1975, the learned District Judge concluded that oh the facts in this case the application filed by the petitioner cannot be said to be one for revival of the earlier application for delivery. On these conclusions, the application was dismissed. Challenging the correctness of this order, the petitioner has preferred this civil revision petition. 5. Mr. M. Raghavan, the learned counsel for the petitioner first submitted that E. A. No. 61 of 1975 was ‘closed’ on 29th April, 1975 and no final order therein was passed and such closure could only be for statistical purpose and the subsequent application in E. A. No. 512 of 1980 was made only with a view to draw the attention of the Court to the pendency of E. A No. 61 of 1975 and to pass further orders thereon and, therefore, the application filed by the petitioner could only be in the nature of an application for revival or continuation of the proceedings in E. A. No. 61 of 1975 and there being no prescribed time limit for making such an application, the present application should have been entertained and dealt with on the merits. In this connection, the learned counsel for the petitioner drew attention to certain decisions of this Court, which will be referred to later in the course of this judgment, to the effect that if the closure is without passing any final orders and for statistical purposes, then an application for revival or continuation can always be filed which would really be in the nature of a reminder to Court drawing attention to the pendency of the proceedings before it requesting it to pass orders thereon. Alternatively, the learned counsel for the petitioner submitted that the application in E. A. No. 512 of 1980 was with a view to execute the order for delivery passed on 13th December, 1975 in E. A. No. 61 of 1975 and that such an application can be made within the time prescribed under Article 136 of the Limitation Act, namely, twelve years from that date and, therefore, the application made in E. A. No. 512 of 1980 on 22nd April, 1980 would be well within time. Reliance in this connection was placed by the learned counsel for the petitioner on the decision inPerumal v. Ramachandra Padayachi1. 6. On the other hand, the learned counsel for the respondent submitted that even on the assumption that the sale was confirmed only on the termination of the proceedings initiated by the respondent herein in E. A. No. 465 of 1976 on 20th November, 1976, the application in E. A. No. 512 of 1980 having been filed only on 22nd April, 1980 would be out of time as per Article 134 of the Limitation Act. It was also his further submission that there was no impediment in the taking of delivery of possession of the property by the petitioner as no stay order as such had been produced to establish that the petitioner was prevented from taking delivery of the property. However, the learned counsel for the respondent would not subscribe to the view taken by the Court below that the endorsement made, on 29th April, 1975 in E. A. No. 61 of 1975 cannot be correct, but would state that E. A. No. 1975 was allowed to be closed only on account of the inaction of the petitioner and cannot, therefore, he called as ‘closure’ for statistical purposes. The learned counsel would also admit that an erroneous act of Court, if one such is established, should not prejudice the rights of parties. A faint argument was also attempted to be raised that the decree obtained by the petitioner herein in O. S. No. 116 of 1967, City Civil Court, Madras, is void. To substantiate the aforesaid submissions, the learned counsel for the respondent relied on the decisions inShanbagavalli Ammal v. Damodaran2 and Ramakrishnayya v. Venkata Subba Rao3 7. In order to appreciate these contentions raised, it would be necessary first to consider the nature and effect of the order passed on 29th January, 1975, in E. A. No. 61 of 1975. Admittedly, that application for delivery of possession was filed into Court within the time prescribed for such applications under Article 134 of the Limitation Act. It is also seen from the several orders passed thereon, that the petitioner, on his part, had taken all the necessary steps to secure delivery of possession of the property purchased by him. Admittedly, that application for delivery of possession was filed into Court within the time prescribed for such applications under Article 134 of the Limitation Act. It is also seen from the several orders passed thereon, that the petitioner, on his part, had taken all the necessary steps to secure delivery of possession of the property purchased by him. Indeed, the petitioner had also moved for police aid and secured the same as well and the Court directed the delivery of the property to the petitioner by 29th April, 1975. It was on that day the application in E. A. No. 61 of 1975 was closed by the Court below by passing the order referred to earlier. The "learned District Judge, in the course of paragraph 5 of the order, has stated that the endorsement that the petitioner received stay order from City Civil Court, Madras cannot be correct. A perusal of the order passed by the Court below does not in any manner bring out the basis for this conclusion of the learned District Judge. An endorsement solemnly made and. acted upon by the Court resulting in the closure of an application cannot be got out of the way by merely describing it as incorrect. In the absence of any materials showing conclusively that the endorsement was incorrect, it has to be taken as representing the correct state of affairs as brought to the notice of the Court on the basis of which the Court had also acted. Even on the footing that the statement was an incorrect one, in the absence of anything to connect the petitioner with such an incorrect statement the petitioner cannot be penalised or put to any loss on that account. It is indeed unfortunate that the Court below has proceeded on the assumption regarding the incorrect nature of the endorsement made on 29th April, 1975. That endorsement had, therefore, to be acted upon as a correct representation to Court, and if so done, it is clear that on 29th April, 1975, the Court was of the view that there was some kind of intermediate obstacle which would effectively prevent the petitioner from taking delivery of possession of the property purchased by him in court-auction and, therefore, had ordered the closure of the application without passing any final order touching upon the entitlement of the petitioner to delivery of possession of the property. Under those circumstances, the order passed in E. A. No. 61 of 1975 on 29th April. 1975, cannot be stated to be an order passed on the merits" of the application, but one pronounced with a view to take E. A. No. 61 of 1975 off the file of the Court for statistical purposes. Indeed, the effect of closure of applications in execution for statistical purposes is well-settled. To close an application on account of an inability to immediately carry out the order owing to an obstruction, for instance, tantamounts to the postponement of the carrying out of the order and this cannot be equated to dismissal of the application. The Court treats the proceeding as closed only for statistical purposes. 8. A Division Bench of this Court in Pattannayya v. Pattayya1, had to consider whether an application filed by the decree-holder on 3rd September. 1921 was in time, having regard to the earlier order passed in 1915 on another execution application, which was well within time, to the effect that one item was delivered and the petition was recorded. The Courts below dismissed the application as being barred by time. But Jackson, J., took the contrary view and on further appeal, the Bench pointed out the procedure to be followed by Courts executing the decree and stated that the passing of an order like the lodging of the petition, or recording it or striking it off, is not provided for at all and it is only to adjourn matterssine die the phraseology ‘lodged’ or ‘recorded’ ‘struck off’ had been used, but that the application would still be on the record of the executing Court. Further, it has been pointed out by the Bench that to speak of a revival of a petition which had not been dismissed would be incorrect and any subsequent application is only intended to call the attention of the Court to the fact that the petition has to be proceeded with, as no party should suffer by reason of the Court keeping the matter pending on its file. In that view, it was held that the execution petition filed in 1915 was pending and that the subsequent application filed was not barred. In that view, it was held that the execution petition filed in 1915 was pending and that the subsequent application filed was not barred. Pandalai, J. in Subramanian v. Angappa Asari2, referred to the procedure of closing or striking off of such proceedings on statistical or administrative grounds and stated that such disposals are not judicial ones and that for purposes of limitation, they must be regarded as surviving or continuing. Walsh, J., inAppavoo v. Lakshmana3, had to consider whether an application for delivery of possession of the property which was closed on 22nd September 1921 would bar a fresh similar application filed on 3rd March, 1927. The order ‘closed’ on the petition dated 22nd September, 1921, according to the learned Judge, was not a proper disposal and that the application dated 3rd March, 1927 should be regarded as a reminder to the Court to proceed with the original petition on which delivery was ordered and which was never properly disposed of and, therefore, the later application was not time-barred. The petitions filed subsequent to the passing of the order ‘closed’ on the application dated 22nd September, 1921 and before the filing of the application on 3rd March 1927 were all regarded as reminders to Court that the petitioner was pending and in this view, the plea of limitation was overruled.V. Swamigal v. K. Goundan1 dealt with a petition for delivery of possession wherein excepting one item, the rest of the items were delivered and as the auction-purchaser apprehended obstruction, he stated that possession of that item could be taken later, which was recorded by the Court on 21st September, 1936 and the petition was dismissed. On 26 August, 1939, another application for delivery was filed on the ground that the later application must be considered to be a continuation of the prior application and, therefore, that application would be in time. The application was dismissed as barred by time by the Courts below. On 26 August, 1939, another application for delivery was filed on the ground that the later application must be considered to be a continuation of the prior application and, therefore, that application would be in time. The application was dismissed as barred by time by the Courts below. Kuppuswami Ayyar, J., however, construed the order passed on 21st September, 1936 as one based on an apprehension of obstruction and expressing want of timeto take possession with the police help and, therefore, it was the duty of the Court to have posted the petition to some other date It was also pointed out by the learned Judge that since the party was not at fault, the dismissal of the petition must be considered to be an order adjourning the samesine die till such time as steps are taken. The learned Judge held that the application was in time. In doing so he followed the judgment of Burn, J., in C. M. A. No. 510 of 1940. Horwill, J., inKotayya v. Narayana2 had to consider whether an application filed by the decree-holder on 11th February, 1941, after the striking off of the earlier application filed by him on 2nd February, 1938, would be in time. The application came to be struck off because of an obstruction. It was pointed out by the learned Judge that if there was a default in the prosecution of the application on the part of the auction-purchaser, then the dismissal is a final order disposing of the application. But, if the application had been merely closed for no fault of the auction-purchaser, then the application for delivery must still be deemed’ to be pending. Panchapakesa Ayyar, J , inMuthveeranna v. Muthuvenkatarama3, has pointed out that despite the use by Court of expressions like struck off, ‘lodged’, ‘recorded’ or ‘closed’, if the reliefs prayed for or some of them remain undisposed of without being covered by final orders either granting or refusing them, the petitions will continue to remain on the file of the Court and that it was the duty of the Court to effectively and validly dispose of petitions and that when a petition is closed for statistical purposes, it must be deemed to be pending and should be proceeded with. InRamakrishna Mudali v. Sivarama Prasad4, the sale in favour of the decree-holder was confirmed on 4th January, 1944 and an application for delivery of possession was made under Order 21, rule 95, Civil Procedure Code. But owing to the obstruction offered by the judgment-debtor, the application was dismissed on 22nd July, 1946. Another application was filed on4th July, 194? and an objection was raised that the application was barred. The Court pointed out that the prior application, notwithstanding its dismissal, must be deemed to be pending and that fresh application for delivery was only in the nature of a continuation of the former one and the application was, therefore, held to be in time. The Supreme Court inVenkanna v. Bangararaju5, had occasion to consider the effect of orders like ‘closed’ or ‘closed for statistical purposes’ or ‘struck off’ or ‘recorded’ etc., passed in proceedings by executing Courts. The Supreme Court pointed out thus: "It is not necessary to express our opinion on the question whether such procedure is sanctioned by the Code of Civil Procedure or not ; but assuming that the Court has no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the Court in making an order "closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdication or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated. In either case the execution petition would be pending on the file of the Court. That apart, it is not the phraseology used by the executing Court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the Court to ascertain, having regard to the circumstances under which the said order was made, whether the Court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the Court. 9. It is thus clear that the form of the order is not the determining factor, but it is the substance that matters. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the Court. 9. It is thus clear that the form of the order is not the determining factor, but it is the substance that matters. Viewed in this light, the order passed on 29th April, 1975, in E.A. No. 61 of 1975 cannot be considered to have finally determined the right of the petitioner to obtain delivery of possession of the property purchased by him. In that sense, the application in E.A. No. 61 of 1975 must be still deemed to be pending and the subsequent application filed by the petitioner in E.A. No. 512 of 1980 was only in the nature of a remainder to the Court drawing its attention to the pendency of E.A. No. 61 of 1975 and requesting the Court to take the necessary steps to deliver effective possession of the property to the petitioner. For making such an application, there is no question of applicability of Article 134 or any other Article of the Limitation Act. InS.K. Sahgal v. Kishore Khanna1, the question arose whether for the purpose of continuing execution proceedings already commenced, any question of limitation would arise and the Supreme Court pointed out that it has long been recognised by the Courts in this country that a right to continue a proceeding which is pending, is a right which arises from day to day and no question of any bar of limitation with regard to the enforcement of such a right arises. In view of the aforesaid considerations, the application filed by the petitioner in E.A. No. 512 of 1980 was in the nature of a reminder to the Court drawing its attention to the pendency of E.A. No. 61 of 1975 and the need for passing further orders thereon and there being no prescribed period of limitation for making such an application, ‘the application was well in time when it was made on 22nd April, 1980. 10. Earlier, it had been pointed out that the nature of the order passed on 29th April, 1975, in E.A. No. 61 of 1975 was not such as to determine the right of the petitioner finally, but that that application should be still considered to be pending as a result of the closure of that application by Court. 10. Earlier, it had been pointed out that the nature of the order passed on 29th April, 1975, in E.A. No. 61 of 1975 was not such as to determine the right of the petitioner finally, but that that application should be still considered to be pending as a result of the closure of that application by Court. In view of that, Article 134 of the Limitation Act cannot be applied to the application made by the petitioner in E.A. No. 512 of 1980, as contended by the respondent. Equally, the respondent cannot be heard now to say that there was no impediment in the taking delivery of possession of the property by the petitioner, as the endorsement made on 29th April 1975, proceeded on the footing that the petitioner had received a stay order from the City Civil Court, Madras. That endorsement has been already found to be correct and as such it was that which was responsible for the closure of the application in E.A. No. 61 of 1975 owing to the inability of the petitioner to take effective delivery of possession. Again, it has to be remembered that E.A. No. 61 of 1975 was not closed on account of any default on the part of the petitioner to take delivery or to pay batta or to take other steps in order to secure possession of the property purchased. On the contrary, the records disclose that for no fault of the petitioner, the application had been closed on account of an order of stay and, therefore, the petitioner cannot be charged with an omission to take the necessary steps so as to disentitle him from filing another application in E.A. No. 512 of 1980. Indeed, as noticed earlier, the learned counsel for the respondent was fair enough to admit that the endorsement made on 29th April, 1975 in E.A. No. 61 of 1975 was not incorrect, and if that be so, the closure of the application by the Court on the basis of the endorsement, which had not been established to be in any manner erroneous, cannot prejudice the rights of the petitioner. In this view of the matter, the application filed by the petitioner in E. A. No. 512 of 1980 cannot be rejected on the ground that the prior application in E A. No. 61 of 1975 was allowed to be closed on account of the default of the petitioner. 11. The decisions referred to earlier and relied upon by the learned counsel for the respondent do not support the contentions urged by him. InRamakrishnayya v. Venkata Subba Rao1, the earlier applications were dismissed and disposed of owing to laches on the part of the decree-holder. Undoubtedly, in such a case, the decree-holder cannot be permitted to take advantage of his own laches and come forward with another application under the guise of one, either for revival or continuation Such is not the situation is the present case. In the decision inShanbagavalli Ammel v. Damodaran2, the principal question that arose for decision was whether an application for delivery of possession by an auction-purchaser, who had purchased the property in execution of a decree passed in the Original Side of this Court, will be governed by Article 80 or Article 183 of the Limitation Act. In holding that Article 180 of the Limitation Act would apply to such cases, the Bench also considered the effect of an incomplete order for delivery passed on a prior application and stated that in such cases, the subsequent application must be regarded as an application to bring up for orders the earlier application for delivery, but that in that case, the earlier application for delivery had been finally disposed of and, therefore, no question of revival would arise. The Bench further pointed out that an application for execution or for delivery of possession can be regarded as a continuation of the previous application in cases where there has been no complete disposal of the application on the previous occasion and where there has been a termination of such proceedings for a reason for which the decree-holder or the auction-purchaser is not responsible. The present case would fall under both the categories enumerated above and thus support the stand taken by the petitioner. The present case would fall under both the categories enumerated above and thus support the stand taken by the petitioner. Thus, on a consideration of the circumstances under which the prior order in E.A. No.61 of l975 came to be passed on 29th April, 1975, it is established beyond doubt that there was no disposal of that application on that date, but there was only a closure or striking off for statistical purposes and, therefore, the subsequent application filed by the petitioner in E.A. No. 512 of 1980 would be in the nature of an appliction reminding the Court to proceed with the earlier application for delivery and such an application would also be well in time. 12. Earlier, the termination of the proceedings instituted by the respondent in E.A. No. 465 of 1976 under Order 21, rule 90, Code of Civil Procedure, on 20th November, 1976, has been noticed. Emboldened by this, the learned counsel for the respondent attempted to raise a plea of limitation as regards E.A. No. 512 of 1980 on the ground that that application had not been filed with-in one year after the confirmation of he sale, namely, 20th November, 1976 as contemplated by Article 134 of the Limitation Act. On the dismissal of the application in E. A. No. 82 of 1973 for the acceptance of security on 12th September, 1974, the sale in favour of the petitioner was also confirmed. Even so, as a result of the restoration of E.A. No. 82 of 1973 in’ E.A. No. 180 of 1975 and the numbering of the petition to set aside the sale in E.A. No. 465 of 1976 filed on 17th January, 1973 and the disposal thereof only on 20th November, 1976, the sale in the instant case cannot be stated to have become absolute during the period from 17th January, 1973, till the dismissal of E.A.. No. 465 of 1976 on 20th November, 1976. No. 465 of 1976 on 20th November, 1976. But even before that, on 1st April, 1975, the respondent had instituted O. S. No. 2408 of 1975 challenging the very decree in O.S No. 116 of 1967 and that the suit was dismissed only on 28th February, 1979 and the appeal therefrom in A.S No. 63 of 1980 was also dismissed on 23rd June, 1980, In other words, between 1st April, 1975 till 23rd June, 1980 the very decree, in execution of which the petitioner had purchased the property, was put in peril and during that period, the court-auction-sale in execution of that decree in favour of the petitioner cannot be stated to have attained finality. It is thus obvious that as a result of the proceedings initiated by the respondent, the petitioner could not secure irrevocable and absolute title to the property till 23rd June, 1980 or at any rate, till 20th November, 1976. If 23rd June, 1980 is considered to be the date when the sale in favour of the petitioner had become absolute, then E.A No. 512 of i980 having been filed even prior to that date, cannot certainly be barred by limitation, even on the assumption that E.A. No. 512 of 1980 was a fresh application for delivery to which Article 134 of the Limitation Act would apply. On the other hand, if 20th November, 1976, is taken as the date when the sale in favour of the petitioner had become absolute, then even earlier to that date in E.A. No. 61 of 1975 the petitioner had made an application [for delivery of possession of the property, which had been closed for statistical purposes, but was otherwise pending and E.A. No. 512 of 1980 was filed on 23rd April, 1980, for the continuation of the same and there again, as seen before, there cannot be any bar of limitation with reference to such an application. In either event, therefore, the plea of limitation raised by the respondent has to fail. 13. That leaves for consideration the alternative contention raised by the learned counsel for the petitioner based on the decision of this Court inPerumal v. Ramachandra Padayachi1. There also, the auction-purchaser got an order for delivery, but was not successful in obtaining actual delivery either because the warrant was returned un-executed due to obstruction or the property was found locked. 13. That leaves for consideration the alternative contention raised by the learned counsel for the petitioner based on the decision of this Court inPerumal v. Ramachandra Padayachi1. There also, the auction-purchaser got an order for delivery, but was not successful in obtaining actual delivery either because the warrant was returned un-executed due to obstruction or the property was found locked. Ultimately, the applications for delivery were dismissed by the executing Court. Thereafter, the purchaser again moved the executing Court for delivery of possession, as one of the properties was no longer under lock and key and the obstruction in the other was removed. However, by the time the second application was filed, more than a year had passed since the confirmation of the sale. A plea was, therefore, raised that Article 134 of the Limitation Act would apply and that plea was upheld by the Court below with reference to one of the cases and rejected in relation to the other. Both the matters were dealt with together by Balasubrahmanyan, J., as they related to a decision on an identical question of limitation. While pointing out that the Indian Limitation Act, 1963, has done away with the old-time ideas of revival, continuation, step-in-aid, etc., the learned Judge was of the view that the proper Article which would be applicable even in a case, where there had been an earlier order for delivery, is Article 136, as that Article applied not only to a decree, but also to an order of Court, which is executable as an order. In this view, the learned Judge held that the subsequant applications for delivery were in time, having been filed within a period of twelve years from the respective dates on which the earlier orders for delivery were made. Accordingly, in one of the cases, namely, C.R.P. No. 709 of 1980, where the lower Court had ordered delivery, that order was upheld, while in the other case. C.R.P. No. 347 of 1977, where the application for delivery had been dismissed by the lower Court, the learned Judge reversed that order and directed delivery. Against the order passed in C.R.P. No. 709 of 1980, the petitioners therein preferred a petition for special leave to appeal (Civil No. 6438 of 1981) before the Supreme Court of India challenging the correctness of that order and that petition was dismissed by the Supreme Court on 28th August, 1981. Against the order passed in C.R.P. No. 709 of 1980, the petitioners therein preferred a petition for special leave to appeal (Civil No. 6438 of 1981) before the Supreme Court of India challenging the correctness of that order and that petition was dismissed by the Supreme Court on 28th August, 1981. In view of the confirmation of the order passed by this Court in C.R.P. No. 709 of 1980 by the Supreme Court of India, it must be taken that in the instant case also, Article 136 of the Limitation Act can be applied to the order for delivery passed earlier in E.A. No. 61 of 1975 on 13th February, 1975, and if so done, within twelve years thereafter, the petitioner can seek to enforce the order for delivery by means of an application in E.A. No. 512 of 1980 on or before 13th February, 1987. In this view also, E.A. No. 512 of 1980 having been filed on 22nd April, 1980, cannot be stated to be barred by limitation. 14. The argument of the learned counsel for the respondent that the decree in O.S. No. 116 of 1967, City Civil Court, Madras, is void has to be stated only to be rejected. In the course of the delivery proceedings, it will not be open to the party to the suit to challenge the correctness of the decree in execution of which the property was sold. In addition, in this case, the respondent had already instituted a suit challenging the decree and had failed therein and an appeal therefrom had also been dismissed; There is absolutely no material whatever to show that the decree in O.S. No. 116 of 1967, City Civil Court, Madras, was in any manner void. There is thus absolutely no substance whatever in this contention of the respondent No other point was urged. 15. For the foregoing reasons, the order of the Court below dismissing the application in E.A. No. 512 of 1980 filed by the petitioner cannot be sustained and has to be set aside. Consequently, E.A. Nos. 61 of 1975 and 512 of 1980 in E.P. No. 5 of 1970 in M.C.C.O.S. No. 116 of 1967 will stand restored and the Court below will proceed to deliver forthwith possession of the property purchased by the petitioner. The Civil revision petition is, therefore, allowed with costs.