K.D.Sharma, J. - (1.)This is a civil second appeal under Section 100, C. P. C. filed by Dharamchand against the judgment and decree of the learned District Judge Bhilwara dated February 27, 1969 confirming the judgment and decree of the Additional Civil Judge Bhilwara dated August 20, 1968 passed in civil original suit No. 315/66.
(2.)The relevant facts giving rise to this second appeal may be briefly stated as follows:-- Nandlal plaintiff instituted a suit for possession of a shop situated in village Daulatgarh against Dharam Chand. Suwalal, Sohanlal. Lalchand, Mst. Sugnabai and Kanhaiyalal defendants in the court of Civil Judge, Bhilwara on August 19, 1966. The averments in the plaint were that Sobhalal, Ratanlal Bapna and others residents of village Daulatgarh obtained a money decree against defendants Nos. 1 to 4 and one Gyanchand Badola applied for its execution. In execution of the said decree the shop of the judgment-debtors who are defendants in this case was attached and sold by the court of execution. Nandlal plaintiff purchased the disputed shop at the public auction on June 13, 1957 for Rs. 405/-. The sale was made absolute on May 26. 1962 by the court of execution in favour of the plaintiff who later on obtained sale certificate from the Court. Before the sale was made absolute, the defendant-judgment-debtors applied for cancellation of the sale under Order 21, Rule 90 read with Section 47 old C. P. C. but their application was dismissed and the sale was not set aside by the court of execution. The defendant-judfiment-debtors thereupon preferred an appeal in the High Court at Jodhpur but it was dismissed by the High Court on August 19, 1963. The plaintiff further averred in his plaint that after obtaining the sale certificate of the disputed shop he became owner thereof and asked the defendant-judgment-debtors to hand over to him the possession of the shop in question. The defendants, however, continued to occupy the shop in their possession and refused to hand over its possession to the plaintiff. The plaintiff therefore claimed a sum of Rs. 204/- as damages for use and occupation of the shop at the rate of Rs. 4/- per month from the defendants since May 26, 1962 and prayed to the Court for pendente lite and future mesne profits at the rate of Rs. 5/- per month till the date of delivery of posses sion of the shop.
(3.)The suit of the plaintiff was resisted by Dharamchand defendant on several grounds which are enumerated in his written statement dated October 3, 1966. The main ground on which he contested the suit was that the plaintiff after obtaining sale certificate of the shop filed an application in the court of execution on August 23, 1964 under Order 21, Rule 95. C. P. C. for obtaining delivery of its actual possession from the defendant-judgment-debtors, but his application for delivery of possession was dismissed by the court of execution on July 24, 1965 on the ground that it was filed beyond the period of limitation prescribed for filing such application under the Limitation Act and so this suit for possession of the shop cannot lie in view of the fact that the plaintiff failed to challenge the order of dismissal of his application for delivery of actual possession of the shop to him in the superior courts and the said order became final and operates as res judicata. The defendant No. 1 also pleaded in his written statement that the plaintiff was not entitled to any sum of damages for use and occupation of the shop.