Decided on November 13,1953



Satyanarayana Rao, J. - (1.) This appeal arises out of a petition filed by the legal representatives of the decree-holder under Order 21 Rules 95, Civil P. C. for delivery of immoveable property which was purchased in court auction by the decree-holder on 28-11341, in execution of the decree in O. S. No. 37 of 1937. The sale was confirmed on 7-3-1941. Undoubtedly at the time the decree-holder was alive. It is not known when exactly he died; but the first application, E. A. No. 203 of 1941 (Ex. B. 1) for delivery of possession of the property as per the sale certificate was filed on 21-81941. The warrant was returned unexecuted as no one was present to take delivery of possession of the property on behalf of the decree-holder purchaser, and the petition was closed. The second application, E. A. No. 199 of 1943 (Ex. B. 2) was filed on 7-7-1943 for the same relief, and that was struck off on 2-9-1943 as the warrant was returned unexecuted, as the house was under lock and key. The third application, E. A. No. 89 of 1945 (Ex. B. 4) was filed for delivery of possession on 28-3-1945, and that again was dismissed on 11-7-1945 on the ground that the delivery warrant was returned unserved as the petitioner failed to accompany the amin to take delivery of possession. The fourth application E. A. No. 153 of 1945 (Ex. B. 5) was filed on 29-9-1945 for the same relief, and that was dismissed on 14-11-1945 as delivery batta was not paid. The fifth application, E. A. No. 213 of 1946 (Ex. B. 6) was filed on 22nd August 1946 which was dismissed on 3-10-1946 as batta was not paid. The sixth application E. A. No. 49 of 1947 (Ex. B. 7) was filed on 24-3-1947 for the same relief, and was dismissed on 16-7-1947 as batta was not paid. It was after all these applications, that the present application was filed on 30-31948. The respondents objected that the petition was not maintainable, and that it was barred by limitation.
(2.) The petitioners in the lower court attempted to get over the plea of limitation by relying on two circumstances. In the first place, it was alleged that the petitioners were minors when the earlier applications were filed, even now petitioners 2 and 3 are minors, and that therefore they were entitled to rely on Sections 6 and 7 of the Limitation Act for extension of the period of limitation. Secondly, it was contended that there was no judicial disposal of the second of the applications, E. A. No. 199 of 1943 (Ex. B. 2) as it was struck off, as the house was under lock and key, and that the present application should be treated as an application to revive and continue execution, in pursuance of E. A. No. 199 of 1943 which was not properly disposed of. These contentions found favour with the learned District Judge and he overruled the plea of limitation and directed execution to proceed.
(3.) This appeal is by the judgment-debtors, and they challenge the correctness of the decision of the learned District Judge. It is not disputed that the proper Article of the Limitation Act applicable to the case is Article 180, which provides a period of three years counting from the date when the sale became absolute for an application by a purchaser of immoveable property at a sale in execution of a decree for delivery or possession. It has now been decided by a Full Bench of this court in -- 'Abdul Aziz Sahib v. Chokkan Chettiar', AIR 1835 Mad 803 (A), that an application even by a decree-holder auction purchaser for delivery of possession of the property purchased by him in execution sale is governed by Article 180 and not by Article 182 of theIndian Limitation Act, 1908. At the time when the right to apply for delivery of possession accrued, the decree-holder was alive, and as time began to run from that date, the subsequent disability of the legal representatives of the decree-holder would not prevent the running of time. They are therefore, not entitled to invoke the benefit of Sections 6 and 7 of the Limitation Act, for at the time from which the period of limitation is to be reckoned, the person entitled to apply, namely, the decree-holder auction purchaser was not a minor. The view of the learned Judge that the applicants were entitled to the benefit of those two sections proceeded on an erroneous assumption that at the time when the sale became absolute there was no major who could have applied for delivery of possession. This ground on which therefore the learned District Judge rested his decision cannot be sustained in view of the fact that the decree-holder was a major at the material time.;

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