T.C. Raghavan, J.@mdashA short but interesting question of limitation is raised in this second appeal arising in execution. A court sale was confirmed on 12th June 1957, and on 12th December 1958 the appellant-judgment-debtor filed an application u/s 22 of Kerala Act XXXI of 1958 for setting aside the sale. That petition was ultimately dismissed on 2nd January 1960; and thereafter, the decree-holder filed the application, which has given rise to the second appeal, for delivery of possession on 15th September 1960. It was urged by the appellant that the application for delivery of possession filed more than three years after the confirmation of the sale was barred under Art. 180 of the Limitation Act; and this contention has been rejected by both the lower courts.
2. in Aliyaru Ayyan v Krishnan Keshavan (1952 K. L. T. 110) a Division Bench of the Travancore Cochin High Court has held that when a formal order of confirmation of sale is challenged by a subsequent application imperiling the fate of the confirmation, the order on the subsequent application will mark the starting point for limitation; and that the sale becomes absolute within the meaning of Art. 180 of the Indian Limitation Act only when the defendant''s application to set aside the ex parte decree passed in the suit is dismissed. The counsel of the appellant argues that in the cited ruling the application to set aside the ex parte decree was already pending before the confirmation of the sale, so that, until that petition was disposed of, limitation could not run against delivery of possession. The counsel continues that in a case like the one before me, where the application to set aside the sale was filed after the confirmation of the sale, the decision cited above will have no application.
3. One of the decisions considered in the above ruling is the Privy Council decision in
4. In the Privy Council ruling Their Lordships have approvingly referred to the Full Bench decision of the Madras High Court in Muthu Korakki Chetty v Mahomed Madar Ammal (A. I. R. 1920 Mad. 1). In that case, after the confirmation of sale, an application for setting it aside was filed; and the Full Bench has held that the sale should be held to have become absolute only on the date when the application for setting it aside was disposed of.
5. Mr. T. K. Narayana Pillai, the counsel of the appellant, seeks to point out that in the Madras case the application for setting aside the sale was not dismissed in its entirety and that fact would make a difference. But the judgment of the Full Bench itself shows that the fact that the sale was set aside in respect of some of the items included therein and upheld as regards the other items should make no difference as to the application of Art. 180. Therefore, nothing turns on the distinction pointed out by the counsel of the appellant. Thus it is clear that if an application to set aside a sale under the CPC is admitted after the statutory period for confirmation of the sale and after the sale has been confirmed, limitation under Art. 180 commences only on the date of disposal of that application.
6. The only further question is whether this principle can be applied to a case arising u/s 22 of Act XXXI of 1958. I do not know why the same principle should not be applied to a case coming u/s 22 of Act XXXI of 1958. By that provision the judgment-debtor is given a right to have the sale set aside. Of course, he need seek to set aside the sale only during the time when the cause of action of the decree-holder for filing an application for delivery of possession is subsisting and if he files the application and if it is ultimately dismissed, I do not find any reason why a new period of limitation should not commence from the date of disposal of that application, similar to the case of an application for setting aside the sale under the Code of Civil Procedure.
7. In the aforesaid view, I confirm the decision of the lower courts and dismiss the second appeal with costs. Mr. Narayanan Pillai prays for leave to appeal to a Division Bench. Since the question, whether the principle applicable to an application for setting aside a sale under the CPC applies to an application u/s 22 of Act XXXI of 1958, is an important question, I grant leave.
