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Judgment
S. Ramachandra Ayyar, C.J.—This appeal raises a question of limitation. In execution of a final decree in a mortgage suit of this Court on its
Original Side, dated 11th February 1936, one Srinivasa Chetty the husband of the first Appellant and the father of Appellants 2 and 3, who was a
poise mortgagee of the property involved in the suit, purchased the same in public auction held by the Official Referee. The property so purchased
was described as Door No. 20, Gantz Road, Vyasarpadi. The area comprised therein was an extent of about three carnies and 1,719 square feet.
There were a number of huts on the property. The persons who were in occupation of the huts were also parties to the mortgage suit and there
could be no doubt that the purchase would be binding on them. The sale which was on 2nd April 1937 was duly confirmed, and the sale certificate
was issued in favor of Srinivasa Chetty. Shortly after his purchase, he filed Application No. 2660 of 1937 for delivery of possession of the
property, Such parts of the property over which there were no superstructures were delivered over to the purchaser. But no delivery was effected
in regard to other portions in occupation of the Defendants, who had put up huts thereon. By reason of that fact, it can be taken that the application
for delivery filed by the auction purchaser had not been fully disposed of and that the subsequent application for delivery of possession, Application
No. 2790 of 1938, was but a continuation of the original application. On that application the Court, while granting the auction purchaser''s prayer,
observed that such of the Defendants as had put up huts would be entitled to remove the superstructure. But this the Defendants were in no mood
to do. The persons in occupation of the property being themselves judgment-debtors, it was the duty of the executing Court to have directed
delivery of the vacant possession. That was not the order. Yet another application was filed, Application No. 3201 of 1941, for the identical relief.
On that application the Master directed the issue of warrant subject to the right of the Defendants to remove any superstructure for which purpose
a reasonable time may be given by the applicant. It will be noticed, that even this order did not, in terms give a mandate for delivery of vacant
possession to which the auction purchaser was entitled by reason of his purchase. It can, therefore, be taken that although several orders had been
passed on successive applications for delivery of possession, there has been no effective or complete disposal of the first application for delivery of
possession. The auction purchaser too appears to have become indifferent for a while. Nearly eight years after the previous order, he filed
Application No. 4166 of 1949 for obtaining delivery of the remaining properties. On 31st March 1950 the Master passed an order stating
Ordered. Warrant to issue in the first week of July. It is not in controversy that what was intended was that the warrant should issue in the first
week of July 1950. But the auction purchaser did not pursue the matter; He failed to pay the necessary charges for taking out the warrant and as
the applicants have stated in their present application warrant for delivery of vacant possession was not executed and it was allowed to lapse.
It is necessary at this stage to advert briefly to the practice obtaining on the Original Side of this Court in regard to such matters. As soon as an
order for the issue of a warrant for delivery of possession is made, the execution application is treated as having been finally disposed of. In case
where after the order of Court, the warrant is not applied for or taken out, the execution application is kept in the appropriate section for about
three or four months to await the payment of the necessary charges by the person applying for the warrant, after which time it is sent to the records
without being posted for dismissal or for further orders of Court. This, it is stated, has been the practice which has been followed on the Original
Side for a very long time. There appears to be. no provision, either under the old Original Side Rules or in the new one, for posting for dismissal or
final orders the execution applications in which warrants for delivery of possession or attachment or arrest has been ordered but which warrant had
been omitted to be taken out by the party. There is a similar lacuna in regard to warrants issued but not executed for any reason whatsoever. In
our opinion, this practice can hardly be regarded as being in conformity with sound rules of procedure. We would suggest that appropriate rules
should be made for putting up execution petitions for final orders before the Court, whenever there has been a default in the matter of taking out
the warrants ordered to issue, by reason of non-payment of necessary charges, etc. or where the warrant issued is returned unexecuted.
In the present case although the Court directed the issue of warrant for delivery of vacant possession, Srinivasa Chetty did not take any steps to
obtain the warrant in order to secure delivery of possession by removing the huts put up on the land. Even some time previously, he had entered
into an agreement with certain persons, representing the various occupants of the plots in question, for sale of the entire property and had received
an advance. But the latter had repudiated the agreement of sale and instituted Original Suit No. 340 of 1953 on the file of the City Civil Court for
the return of the advance paid. They were able to obtain a decree. There was also another litigation in regard to the title to the property in Civil Suit
No. 469 of 1950. That ended in a compromise on 30th April 1954. Srinivasa Chetty died on 19th May 1955. More than three years thereafter, in
September 1959 his legal representatives filed the application, out of which this appeal arises, for delivery of possession of the property. Both the
Master as well as Srinivasan, J., on appeal, have held the application to be barred by limitation.
Notwithstanding the fact that the present proceedings arise in execution of a decree passed oh the Original Side of this Court, the application for
delivery of possession by the auction purchaser will be governed only by Article 180 and not by Article 183 of the Limitation Act. The latter
provision provides for a period of twelve years to enforce a judgment, decree or order of the High Court passed in the exercise of its ordinary
original civil jurisdiction. But the decree of this Court had been executed and it resulted in a sale. The application for delivery consequent on such
sale cannot be regarded as an application for execution of the decree, although, if the decree had remained unsatisfied such an application might be
held to be an application in step-in-aid of execution or one for reviver of the decree, so far as the unsatisfied portion of the decree is concerned.
Article 180 will apply to the case of an application for delivery, whether the auction purchaser happens to be a stranger or the decree-holder
himself. This has been settled by the decision of a Full Bench of this Court in Abdul Azim Sahib v. Chokkan Chettiar ILR (1935) Mad. 893. That
Article provides that for an application of delivery of possession, there will be a period of three years from the date when the sale becomes
absolute.
From what we have stated above, it will be seen that although the auction purchaser filed four successive applications for delivery of possession,
it was only in Application No. 4166 of 1949, that an order for delivery of vacant possession was passed. The orders passed on the previous
applications were incomplete and it must, therefore, be held that Application No. 4166 of 1949 was a continuation of the previous applications.
Although it was filed nearly twelve years after the date when the sale became absolute, it must in essence be regarded as an application to bring up
for orders the first application for delivery. But the order on that application finally disposed of the matter. It directed the issue of a warrant for
delivery of vacant possession. It cannot thereafter be said that the application for delivery is pending. The auction purchaser had merely to take out
the warrant and obtain delivery of possession from the judgment-debtors. The Supreme Court in Sahgal v. Maharaj Kishore Khanna (1959)
S.C.J. 1099 observed that if an application for execution was made in a pending execution proceeding, no question of limitation could arise, as the
right to continue the proceeding, which is pending, will be a right that arises from day to day and there would, therefore, be no bar of limitation with
regard to the enforcement of such a right. The application for delivery in the instant case was not one made in a pending application for delivery as
the previous application had been finally disposed of by the order, dated 31st March 1950; the remedy, of the auction purchaser will thereafter be
only to effectuate that order, which was given to him. He did not avail himself of that order but allowed it to lapse.
Learned Counsel for the Appellants, has however, contended that the pre sent application filed, nine years after the final order on the application
for delivery of possession, must be regarded as a reminder to the Court to issue the warrant that had been ordered on 31st March 1950. Reliance
is placed in support of this contention on the recent unreported judgment of this Court in Appeal against Appellate Order No. 43 of 1961. In that
case an auction purchaser first filed an application for delivery of possession in time but no effective delivery could be granted, as the demarcation
stones on the property had been removed by the judgment-debtors. It became necessary for him to take appropriate steps for identifying the
property. Under those circumstances, he did not press the original application for delivery of possession, which was accordingly dismissed. When
another application was filed, more than three years after the sale became absolute, a plea of limitation was raised It was held that although the first
application had been dismissed, such dismissal must, in the circumstances, be regarded as not amounting to a final judicial order on the application
for delivery of possession, as delivery could not then be effected by reason of the conduct of the judgment-debtors.
Thus, an application for execution or for delivery of possession can be regarded as a continuation of the previous application in cased where
there has been no complete disposal of the application on the previous occasion, and in cases where there has been a termination of such
proceedings, for a reason for which the decree-holder or the auction purchaser is not responsible. But, where, as in this case, the previous
application, namely, Application No. 4166 of 1949, has been disposed of finally by giving to the auction purchaser the order to which he was
entitled under the law, and where such an application was not proceeded with by reason of the default of the auction purchaser himself, there
would, in our opinion, be scope for the application of the theory of continuation.
In Sree Rajah Vadrevu Viswasundara Rao Bahadur, Zamindar Garu Vs. Vannam Paidigadu, by Mother and Soori and Others, , a Bench of this
Court held that where the Court was unable to give effect to its order by reason of the absence of the Petitioner, who was bound to be present in
order to take delivery, or owing to causes over which he had control, it was not the duty of the Court to give notice to him to show cause why that
petition should not be dismissed. They also pointed out that such a case would be different from one where there was obstruction by the judgment-
debtor or where owing to causes which were beyond the control of the auction purchaser the delivery could not be effected. In the latter class of
cases the order for delivery of possession would remain in force, and a subsequent application to execute that order would be a continuation of the
original application, albeit the second application may have been filed more than three years after the sale became absolute. This view was
accepted in Ramakrishnayya v. Venkatesubba Rao (1854) 2 M.L.J. 89, where, by reason of the default on the part of the auction purchaser the
application for delivery of possession was dismissed. It was held that the principle of reviving the previous application, not judicially and finally
disposed of by the Court, could not be invoked by the auction purchaser.
From what we have stated above, it would be clear that the application out of which this appeal arises cannot be regarded as a continuation of
the previous application, namely, Application No. 4166 of 1949, and it must, therefore, be held to be barred by limitation under Article 180 of the
Limitation Act.
Mr. Seshadri Ayyangar for the Appellants, however, contends that the appropriate article of the Limitation Act to be applied in the
circumstances of the present case would be Article 183. The order of the Master, dated 31st March 1950 in Application No. 4166 of 1949 being
an order of the High Court passed in the exercise of its ordinary original civil jurisdiction, it is argued that the Appellants would be entitled to a
period of twelve years for the enforcement of the same. There is a fallacy underlying this argument. The order, dated 31st March 1950 directs the
issue of a warrant in the first week of July 1950. In that form that order could not thereafter be enforced. What the Appellants, seek is now to
obtain a fresh order for delivery of possession, which can be executed now. That, as we have pointed out, they cannot get by reason of lapse of
time. But it will be open to them to apply to the Master for altering the date of the issue of the warrant, which, in the original order, was directed to
issue in the first week of July 1950. The executing Court has always the inherent power to alter the date of the return of the warrant. But such an
amendment of the order can only be obtained by means of a Master''s Summons, as provided for in the Original Side Rules. The period of
limitation for filing an application for such amendment of the order, will be that; contained in the residuary provision, namely, Article 181 of the
Limitation Act. Tile right to apply must be held to have accrued the moment the auction purchaser failed to obtain the warrant in the first week of
July 1950. Although there could be no limit to the number of applications that can be filed for altering the date of issue of the warrant, yet each
successive application must be filed within three years from the date when the right to apply accrued. In the present case, inasmuch as there has
been no application for amendment and reissue of the warrant within three years after the original date of the order, the Appellants cannot obtain
the process of court for effecting delivery by getting the order, dated 31st March 1950 amended.
The appeal, therefore, fails and will be dismissed. In the circumstances, there will be no order as to costs.