ARUNACHALAM VANAMOORTHI KONAR Vs. GEEVARGHESE
LAWS(KER)-1963-12-25
HIGH COURT OF KERALA
Decided on December 21,1963

ARUNACHALAM VANAMOORTHI KONAR Appellant
VERSUS
GEEVARGHESE Respondents


Referred Judgements :-

GOBARDHAN BANERJEE VS. SUKHAMOY [REFERRED TO]


JUDGEMENT

K.K.MATHEW,J. - (1.)1st defendant is the appellant.The appeal is from a decree in a suit for redemption of the plaint schedule property.That property belonged to the 3rd defendant.In the year 1098 he executed a hypothecation bond of that and other properties to the erstwhile Government of Travancore as security for an agricultural loan.In 1099 the 3rd defendant and his wife the 4th defendant executed a hypothecation bond to the Travancore National Bank Ltd .,hereinafter called the Bank,of the plaint and other properties.On the basis of the hypothecation bond in favour of the Bank,the Bank instituted a suit O.S.42/1103,obtained a decree and brought one property included in the hypotheca to sale and purchased it.In the year 1107 the Government of Travancore proceeded to realise the amount due to them under the agricultural loan.At that time,the Bank stepped in and paid off the amount due to the Government.Thereafter,for realising the amount thus paid off by the Bank to the Government it filed O.S.145/1107 against the owner of the properties.A decree was passed in that case and in execution of the decree the Bank purchased the plaint schedule property on 14 -7 -1112,and got delivery of possession of it in the year 1115.In the meanwhile the Bank had gone into liquidation and the liquidator sold the properties to a third party in the year 1117 under Ext.V and the 1st defendant got a sale of that right from the third party under Ext.VI. - - Before the Bank filed the suit in O.S.145/1107 the 2nd defendant had filed a suit and obtained a money decree against the 3rd defendant in O.S.405/1099.In execution of that decree he had brought the plaint schedule property to sale on 7 -1 -1105,and purchased it.The sale was confirmed on 5 -2 -1105.He got delivery of possession of the property under Ext.F and the building thereon under Ext.F1 dated 25 -5 -1108 and 16 -2 -1108 respectively,and sold his rights in the property to the plaintiff in 1124.When the Bank sought delivery of possession in execution of O.S.145/1107 the 2nd defendant put in an obstruction petition before the Amin who came to effect the delivery.The main reported the fact of obstruction to the court and thereafter the Bank filed an application Ext.K for removal of the obstruction.Ext.G is the execution diary in O.S.145/1107 and Ext.H is the obstruction petition put in by the 2nd defendant.From Ext.G it is clear that the court passed an order dismissing the obstruction petition and allowing delivery of possession of the property,and as I have already said,that delivery was effected in the year 1115.It would appear that the obstructor did not contest the case and allowed the order to be passed ex parte.The present suit has been filed by the plaintiff for redemption of the admitted charge on the property.The plaintiff averred that the 2nd defendant had become the owner of the property at the time when O.S.145/1107 was filed and as he was not impleaded in that suit as the owner of the equity of redemption,the decree in O.S.145/1107 was not binding on him and therefore the plaintiff,who succeeded to his rights was entitled to redeem the properly and to recover possession thereof.
(2.)THE 1st defendant contended that the execution proceedings in O.S.405/ 1099 were vitiated by fraud and collusion,that as a matter of fact there was no delivery of the property to the 2nd defendant in 1108 and that Exts.F and F1 cannot be acted upon for finding that there was delivery of possession.He also contended that the suit was barred by limitation in as much as the 2nd defendant did not obtain possession of the property after the court purchase and as more than 12 years have elapsed from that date,his right to the equity of redemption was lost by adverse possession and as the charge in favour of the Government and of the Bank were merely hypothecation rights,the property was in the possession of the 2nd defendant and thereafter of the Bank and the suit not having been instituted within 12 years of date of the confirmation of the sale was barred by limitation.
(3.)THE trial court found that the plaintiff was not entitled to redeem on the ground that the suit was barred by limitation.The reason why it held so was that the 2nd defendant had to sue for possession within 12 years from the date of the confirmation of the court sale,and as he had not instituted such a suit his right to the property became extinguished by lapse of time.The Court also found that Exts.F and F1 could not be relied upon as conclusive of the question of delivery of the properly to the 2nd defendant,and that the other evidence in the case showed that as a matter of fact no delivery took place.In appeal by the plaintiff the lower appellate court reversed that decree holding that there was no bar of limitation for the suit and that Exts.F and F1 evidenced real delivery of the property to the 2nd defendant.
The main contention raised in this appeal was that the suit was barred by limitation and that there was no delivery of the plaint property to the 2nd defendant in the year 1108 as evidenced by Exts.F.and F1.On the question of limitation counsel put forward a twofold argument.In the first place he submitted that the 2nd defendant not having filed a suit within 12 years from the date of the confirmation of the court sale,for recovery of possession of the property,his right to recover the property got barred under Article 126 of the Travancore Limitation Act which reads as follows: Like 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. Twelve years The date when the sale becomes absolute. In this case it is admitted that the 3rd defendant was in possession of the property on the date of the purchase in court auction by the 2nd defendant and therefore it was urged that the suit not having been filed within 12 years the equity of redemption became lost to him under S.28 of the Limitation Act.

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