Madras High Court
N.M.Subramaniam vs Unnammal (Died) on 31 January, 2019
Author: P.T. Asha
Bench: P.T. Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.01.2019
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.97 of 2019
&
C.M.P.No.2451 of 2019
N.M.Subramaniam ... Appellant
Vs
Unnammal (died)
Thirumoorthy ...Respondent
Prayer: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgement and Decree dated
18.08.2016 made in A.S.No.59 of 2015 on the file of the learned
Sub Court, Sathyamangalam confirming the Judgement and
Decree dated 10.09.2015 made in O.S.No.42 of 2012 on the file
of the learned District Munsif Court, Sathyamangalam.
http://www.judis.nic.in
2
For Appellant : Mr.R.Vinoth Kumar
for Mr.N.Manokaran
JUDGMENT
The plaintiff in a suit for recovery of possession is the appellant before this Court. The facts which are necessary for disposing of the Second Appeal are reproduced herein below in a nutshell:
2.The plaintiff is a successful bidder in a Court auction held in 13.06.2001 in E.A.206 of 2001 in E.P.No.51 of 2000. After the confirmation of the auction sale the plaintiff had moved for issuance of sale certificate and by an order dated 31.03.2010 the sale certificate was also issued to the plaintiff. Thereafter, on 15.06.2010, the plaintiff who was the auction purchaser took out proceedings under Order XXI Rule 95 read with read with Section 151 of the Code of Civil Procedure in E.P.No.28 of 2010 for http://www.judis.nic.in 3 delivery of possession. Since the Execution Petition is filed much beyond one year period the Execution Petition was dismissed giving liberty to the petitioner to file a suit.
3.Pursuant to this Order on 18.04.2011 the plaintiff had filed the suit O.S.No.42 of 2012 on the file of the District Munsif Court, Sathyamangalam for recovery of possession of the property which is the subject matter of this Second Appeal. The suit was dismissed on the ground that it was barred by the provision of Article 134 of the Limitation Act, which provides that any proceedings for recovery of possession by the auction purchaser should be made with a period of one year from the date of the confirmation of the sale. The Court below has opined that recovery of possession was not in the usual course but only as a auction purchaser and when the Act specifies a particular time period the hands of the court are tied.
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4.The said Judgment and Decree was taken up on appeal in A.S.No.59 of 2015 on the file of the Sub Court, Sathyamangalam. The learned Subordinate Judge also confirmed the order of the learned Trial Judge. Challenging this concurrent Judgement and Decree the plaintiff is before this court.
5.Heard Mr.R.Vinoth Kumar, learned counsel for the appellant. He would argue that it is the case of recovery of possession the same is more in the lines of the Execution Proceedings and therefore the time period was twelve years. Further the Honourable Supreme Court in its Judgement in Ganpat Singh Vs. Kailash Shankar reported in AIR 1987 SCC 1443 was dealing with limitation in the cases of regular suit for recovery of possession and the suit instituted by an auction purchaser for recovery, the Honourable Supreme Court has clearly distinguished that in the case of an auction purchase it is only Article 136 that would apply which is the period of three years from the date of confirmation of the auction sale. This has http://www.judis.nic.in 5 been reiterated in the Judgement in Batan Bapu Patil (dead) by Lrs. and others Vs. Dodhu and others reported in 2004 (4) CTC 148. In the light of the provisions of Article 136, there is no infirmity in the order passed by the Courts below.
In the result the Second Appeal is dismissed and the Judgment and Decree of the Sub court, Satyamangalam in A.S.No.59 of 2015 stand confirmed. There shall be no order as to costs. Consequently, connected Civil Miscellaneous Petition is also closed.
31.01.2019
kan
Index : Yes/No
Speaking order/non-speaking order
To
1.The Sub Judge,
Sathyamangalam.
2.The District Munsif,
Sathyamangalam.
http://www.judis.nic.in
6
P.T.ASHA, J.,
kan
S.A.No.97 of 2019 &
C.M.P.No.2451 of 2019
31.01.2019
http://www.judis.nic.in