THYCATTUSERI CHURCH Vs. SICILLYAMMA
HIGH COURT OF KERALA
Click here to view full judgement.
(1.) THIS appeal raises two questions on which there is considerable divergence of opinion; and they are: (1) Whether time under Article 11 A, Limitation Act, runs from the date of the order of the executing Court on the claim petition or of the High court on a petition for its revision; and (2) if the starting point be the former, can the time taken by the revision proceeding be excluded from computation under Section 14 of the limitation Act.
(2.) THE suit property having been purchased by the plaintiff in Court sale was delivered to him by process of Court. The first defendant who had been in possession of the property as mortgagee under the purchaser in an earlier Court sale applied under Order 21 Rule 100 for restoration of possession to him and it was allowed by the executing Court on 18-3-1122. The plaintiff's petition for revision of that order was dismissed by the High Court on 25-4-1122. The present suit under Order 21 Rule 103 C. P. C. was instituted on 23-4-1123. It was allowed substantially by the Munsif, but has been dismissed on appeal by the Subordinate judge as being barred under Article 11a, Limitation Act. The plaintiff has come up in second appeal.
(3.) ARTICLES 11 and 11a of the Limitation Act deal with suits contemplated in Rules 63 and 103 of Order 21 C. P. C. , usually known as 'claim suits'. The limitation prescribed is 'one year' from 'the 'date of the order'. Courts have differed as to the meaning of the expression 'the date of the Order' in the above Articles, when a petition for revision of the order of the executing Court had been admitted and ultimately dismissed by the High Court. The Madras and Travancore High Courts have field the order concerned is the 'final order' on the revision petition; but other High Courts have refused to take note of any infructuous revision petition in the matter. In Ouseph Chacko v. Krishna Pillai Govinda Pillai, AIR 1958 Kerata 22 a Full Bench of this Court noticed 'the divergence of judicial opinion' on the point but found it unnecessary to decide the same in the case.;
Copyright © Regent Computronics Pvt.Ltd.