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1997 DIGILAW 1112 (MAD)

K. Bakthavatsalam Naidu v. Kanehanadevi

1997-10-01

S.JAGADEESAN

body1997
Judgment :- 1. As the matter arises under execution proceedings, both the counsel request that the civil revision petition itself can be disposed of. Hence by consent of both the counsel, the revision itself is taken up for final disposal. 2. The first respondent herein is the auction purchaser in the court auction sale. The second respondent is the decree-holder The petitioners are the judgment-debtors. Pursuant to the decree in O.S.No.24 of 1979 the properties of the judgment-debtors were brought to sale on 26.5.1985. The first respondent herein was the successful bidder in the court auction sale and the sale was confirmed in her favour on 12.10.1987. The first respondent filed application for delivery in E.A.No.90 of 1988. That application was dismissed on 30.9.1992 since her counsel reported No instruction’. Thereafter the first respondent filed an application E.A.No.314 of 1992 on 24.11.1992 for delivery of the property. The petitioners herein contested the application on the ground of limitation, contending that as per Art. 134 of the Limitation Act, the ap-plication for delivery of the property ought to have been filed within one year from the date of the confirmation of the sale. As the application has been filed nearly after five years, the application is liable to be dismissed. The lower court allowed the application on the ground that for seeking delivery of the property only Art. 136 of the Limitation Act will be applicable and not Art. 134 of the Limitation Act and hence the application is within the time prescribed by the Statute. As against this order, the present revision has been filed. 3. Mr.M.Kandaswamy, learned counsel for the petitioner contended that the lower court has misconstrued the judgment reported In N.S.Karuppanna Gounder v. Nagammal N.S.Karuppanna Gounder v. Nagammal N.S.Karuppanna Gounder v. Nagammal. (1996)2 M.L..J. 476: (1996)2 C.T.C. 1. Only Art. 134 of the Limitation Act is applicablefor seeking delivery of the property. In accordance with this provision the application has to be filed within one year from the date of confirmation of the sale. Art. 36 will be applicable only in case the executing court ordered delivery in an application filed within one year from the date of the confirmation of the sale and subsequently if any administrative order is to be passed. Hence, the lower court is not correct in allowing the application filed by the first respondent seeking the delivery of property. 4. Hence, the lower court is not correct in allowing the application filed by the first respondent seeking the delivery of property. 4. Mr.S.Parthasarathy, learned counsel for the respondent fairly concedes that only Art. 134 of the Limita-tion Act is applicable for filing the application for delivery and Art. 136 cannot be applied. He further contended that in this case the sale was confirmed on 12.10.1987 in favour of the first respondent. Thereafter, the first respondent filed an application in I.A.No.90 of 1988 on 7.3.1988 for delivery of the property, that is one year from the date of the confirmation of the sale; however the same was dismissed on 30.9.1992 for default. Hence the present petition has been filed. Since the petition already filed had been dismissed, now this court may direct the restoration of the E.A.No.90 of 1988 which was dismissed for default, so that the first respondent will be entitled to take delivery. 5. I have carefully considered the contentions of both the counsel. In fact, since the counsel for the respondent conceded that Art. 134 alone is applicable, the revision is to be allowed; but however the lower court has referred to the judgment reported in N.S.Karuppanna Gounder v. Nagammal N.S.Karuppanna Gounder v. Nagammal N.S.Karuppanna Gounder v. Nagammal, (1996)2 MLJ. 476. (1996)2 C.T.C. 1 wherein, a Division Bench consisting of the then Chief Justice and Justice AR.Lakshmanan have elaborately discussed the question on a reference made by me. The lower court is not correct in observing that the Division Bench has held that Art.136 of the Limitation Act is applicable. On the facts of that case the Division Bench held that Art. 136 will be applicable since in that case already the executing court has ordered delivery. But for filing an application for delivery it has been cat-egorically held that only Art. 134 is applicable. Where the delivery has been ordered in such application. Thereafter to enforce that order of delivery Art. 36 is applicable in the following words: “As already seen, this Article is a specific article requiring all the applications for the execution of decrees or orders, where the decree-holder acquires a vested right under the decree and that right ought not to be taken away except under a clear and unambiguous enactment. In the present case, it is not in dispute that the order of delivery has been passed within one year from the date when the sale become absolute viz., On 9.11.1981. E.A.No.333 of 1982 was filed on 13.3.1982 for delivery and the delivery was ordered in that application on 19.3.1982. The said application was dismissed on 31.3.1982, as auction purchaser had not assisted to effect delivery. Therefore, the very purpose for which E.A.No.333 of 1982 was filed (for delivery) was served with the passing of the order of delivery and what remained thereafter was only the ministerial act of putting into effect of the said order for delivery. It is also to be noted that there is no period of limitation for reminding the court to do its ministerial act of completing delivery of possession pursuant to the order passed for delivery of possession. Even viewed otherwise, that the order directing delivery of possession required to be executed as per the law of limitation, Art.136 of the Limitation Act is the only proper provision to be applied because that article applies not only to a decree, but also to an order of court, which is executable as a decree. It is also not in dispute that the first petition was filed in time…..” From the above extracted portion, it is very clear that the present petition filed for delivery by the first respondent herein is barred by limitation and the order of the lower court is liable to be Set aside and accordingly the same is set aside. 6. So far as the request of the learned counsel for the respondent that the application E.A.No.90 of 1988 filed by the first respondent within one year from the date of confirmation of the sale can be restored is concerned, I am of the view that the relief cannot be granted in this revision. It is open to the first respondent to make such application before the appropriate forum in case he is so advised. Accordingly, the civil revision petition is allowed. However, there will be no order as to costs. 7. In view of the order passed in the civil revision petition, no order is necessary in the civil miscellaneous petition and the same is closed.