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PETITIONER: GANPAT SINGH (DEAD) BY LRS.

       Vs.

RESPONDENT: KAILASH SHANKAR & ORS.

DATE OF JUDGMENT08/05/1987

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1987 AIR 1443            1987 SCR  (3) 355  1987 SCC  (3) 146        JT 1987 (2)   619  1987 SCALE  (1)1273

ACT:     Limitation Act,  1963:  Articles  134  &  136--Scope and applicability  of--Application  by auction  purchaser  under Order XXI Rule 95 CPC for delivery of possession of property sold in execution of decree--Period of limitation prescribed in Article 134 and not Article 136 applicable--Position  not changed by insertion of Explanation II to Section 47 CPC  by CPC (Amendment) Act 1976.     Civil  Procedure Code 1908: Application for delivery  of possession cannot be equated to an application for execution of decree.

HEADNOTE:     The  mortgagee decree-holder in execution of  the  final decree for mortgage, himself purchased the disputed property in the auction sale held on July 14, 1978. On September  20, 1978 the judgment-debtor, the predecessor-in-interest of the appellants, filed an application under Order XXI Rule 90  of the Code of Civil Procedure for setting aside the  aforesaid sale.  Two other petitions of objections were filed, one  of these being by another judgment-debtor. All these objections including  the  application under Order XXI Rule 90  of  the Code  of Civil Procedure were dismissed for default.  Conse- quently,  the sale was confirmed by the District Judge,  the executing Court on January 2, 1979.     On  July 17, 1980 more than one year after the sale  was confirmed  the  decree-holder  auction-purchaser  filed   an application  under  Order XXI Rule 95 of the Code  of  Civil Procedure  for delivery of possession of the  property  auc- tioned-purchased by him. This application was opposed by the judgment-debtor  on the ground that as the  application  was filed  more than one year after the confirmation of sale  it was barred by limitation under Article 134 of the Limitation Act.     The  District Judge held that in view of Explanation  II of Section 47 which was inserted in the Code of Civil Proce- dure, by Section 20 of 356 the  Code of Civil Procedure (Amendment) Act, 1974,  Article 136  prescribing a period of limitation of 12 years for  the execution  of the decree and not Article 134 of the  Limita-

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tion Act would be applicable, and held that the  application was  not barred by limitation and directed issuance  of  the warrant of possession in respect of the disputed property.     The  judgment-debtor filed a revision application  under section  115  of the Code of Civil Procedure  and  a  Single Judge of the High Court dismissed the revision  application. The High Court held that after the insertion of  Explanation II  to Section 47 of the Cede of Civil Procedure,  the  pur- chaser of property at a sale in execution of a decree  would be deemed to be a party to the suit in which the decree  was passed,  and all questions relating to the delivery of  pos- session  of  the  property to such  purchaser  of  immovable property would be questions relating to the execution of the decree and, as such, Article 136 and not Article 134 of  the Limitation  Act  would  apply. It was also  held  after  the amendment  of the Code of Civil Procedure, Article  134  and Article  136  of the Limitation act became  so  inconsistent that  both  could not exist and that Article 134  stood  im- pliedly  repealed by Section 47 of the Code of Civil  Proce- dure read with Article 136 of the Limitation Act.     A  certificate  for appeal to this Court  under  Article 134A of the Constitution, was granted by the Single Judge.     As the certificate on the basis of which the appeal  was filed  was  not competent in view of clause III  of  Article 133, the appeal was treated as one under Article 136.     After conclusion of the hearing, the parties settled the dispute, the respondent decree-holder agreeing to relinquish all his rights as the auction-purchaser upon the  appellants paying an agreed amount.     In spite of such settlement the Court felt the necessity of laying down the correct legal position.     Setting  aside the judgment of the Single Judge  of  the High Court and that of the District Court,     HELD:  1. Article 134 of the Limitation Act, 1963  would apply to an application under Order XXI Rule 95 of the  Code of Civil Procedure by the auction-purchaser for delivery  of possession  of the property sold in execution of  a  decree. [363G] 357     2. The Single Judge of the High Court has  misunderstood the  scope  of the provision of section 47 of  the  Code  of Civil  Procedure and that of the provisions of Articles  134 and  136 of the Limitation Act, 1963. It may be that  before the amendment of section 47, an auction purchaser could file a suit for recovery of the possession of the property within 12  years  from  the date of the sale, but in  view  of  the amendment  of Section 47 of the Code such a suit  cannot  be filed. But that is no ground for holding that Article 136 of the Limitation Act would apply to an application for  deliv- ery of possession. [363C-D]     3. It is for the Legislature to prescribe the period  of Limitation, and the Court is only to see whether any partic- ular application has been filed within that period. [363F]     4.  When a property is sold in execution of a decree  an application  for  setting aside the sale may be  made  under Rule  89, 90 or 91 of Order XXI of the Code of Civil  Proce- dure  by  the persons and on the ground  mentioned  therein. Such  an  application has also to be made  within  the  pre- scribed period of limitation of 60 days from the date of the sale under Article 127 of the Limitation Act, 1963.  Article 134  prescribes a limitation of one year for an  application for  delivery  of  possession by a  purchaser  of  immovable property at a sale in execution of a decree. The  limitation of one year will be computed from the date the sale  becomes absolute. Such an application for delivery of possession can

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be filed only after the decree is put into execution  within the period of limitation as prescribed by Article 136 of the Limitation Act. [362B-D]     5.  The period of limitation prescribed by Articles  136 and 134 are for two different purposes, the former being for the execution of a decree for possession in respect of which the decree is passed, and the latter for an application  for delivery  of possession of immovable property which is  pur- chased  in  the  course of execution of a  decree.  The  two articles have nothing in common for their operation. They do not stand in conflict with each other. [362D-E]     6.  The scope of Articles 134 and 136 and  the  subject- matter  being completely different, the question of  implied repeal of Article 134, does not at all arise. [363F]     7.  Merely because Explanation II to Section 47 CPC  was inserted by the C.P.C. (Amendment) Act 1976, an  application for  delivery of possession under Order XXI Rule  95  C.P.C. cannot be equated with an application for the execution of a decree for possession so as to apply 12 358 years  period of limitation as prescribed by Article 136  of the Limitation Act.[362F-G]     8. An application for delivery of possession of  immova- ble  property purchased in execution cannot, by any  stretch of imagination, be construed as an application for execution of  a decree for possession of property so as to invoke  the provision of Article 136 of the Limitation Act. [362E]     9. After a sale becomes absolute on the dismissal of the application of the judgment-debtor’s claim for setting aside the sale, another application for setting aside the sale  by the  judgment-debtor is not maintainable and the  period  of limitation  as prescribed by Article 134 of  the  Limitation Act cannot be computed from the date of the dismissal of the second application for setting aside the sale. [366H; 367A]     10.  In the instant case, on January 2, 1979 while  dis- missing  the application of the judgment-debtor under  Order XXI Rule 90 the District Judge confirmed the sale. The  said order  confirming the sale is binding not only on the  judg- ment-debtor,  who made the application under Order XX1  Rule 90, but also on all other parties to the execution  proceed- ings  including the 4th judgment-debtor. Accordingly,  there can be no doubt that the application filed by the 4th  judg- ment-debtor praying for setting aside of the sale on grounds other  than those mentioned in Rules 89 to 91 was not  main- tainable  after the confirmation of the sale. By  the  order dated July 21, 1979 the District Judge while dismissing  the application  of the judgment-debtor observed that after  the confirmation  of  the sale the Court was not  authorised  to entertain the application. The application of the  judgment- debtor  not  being  maintainable  in  law,  the   respondent decree-holder was not entitled to compute the period of  one year  under Article 134 of the Limitation Act from the  date of  dismissal of the second application by the 4th  judgment debtor. [365C-E; 368B]     Chandra  Mani Sahai & Ors. v. Anarjan Bibi &  Ors.,  AIR 1934 PC 134 Kamakshi Ammal & Anr. v. Arukkani Ammal &  Ors., AIR 1957 Madras 440 explained and distinguished.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2841  of 1986.     From  the  Judgment  and Order dated 9.4.  1986  of  the Rajasthan High Court in S.B. Civil Revision No. 11 of 1981.

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359     VM.  Tarkunde,  S.  Atreya, Virendra  Bandhu  and  Indra Makwana for the Appellants. T.S. Krishnamurthy Iyer and S.K. Jain for the Respondents. The Judgment of the Court was delivered by     DUTT,  J.  This appeal on a  certificate  granted  under Article 134A of the Constitution of India is at the instance of  the heirs and legal representatives of a deceased  judg- ment-debtor  and  is  directed against  the  judgment  of  a learned Single Judge of the Rajasthan High Court whereby the learned  Judge upheld the order dated December 12,  1980  of the  learned  District Judge, Jaipur City,  Jaipur,  holding that in view of Article 136 of the Limitation Act, 1963  the application  of  the  decree-holder  auction-purchaser   for delivery  of possession of the property  auctioned-purchased by  him was maintainable and not barred by  limitation.  The certificate on the basis of which the appeal is filed is not competent  in view of clause (3) of Article 133 of the  Con- stitution,  we have however treated the appeal as one  under Article  136 of the Constitution. The special leave to  file the appeal is granted by us.     The  mortgagee decree-holder in execution of  the  final decree  for mortgage himself purchase the disputed  property in  the  auction-sale  held on July 14, 1978  at  a  sum  of Rs.30,000. On September 20, 1978, the judgment-debtor Ganpat Singh,  since  deceased, the predecessorin-interest  of  the appellants, filed an application under Order XXI Rule 90  of the Code of Civil Procedure for setting aside the sale.  Two other petitions of objections were filed by one Chiranji Lal and by another judgment-debtor, Mst. Abhey Kanwar. All these objections  including the application of Ganpat Singh  under Order  XXI  Rule  90 of the Code of  Civil  Procedure,  were dismissed  for default and, consequently, the sale was  con- firmed  by the learned district Judge, the executing  court, on January 2, 1979.     On July 17, 1980, that is, more than one year after  the sale  was  confirmed,  the  decree-holder  auction-purchaser filed an application under Order XXI Rule 95 of the Code  of Civil  Procedure for delivery of possession of the  property auctioned-purchased by him. The said application was opposed by  the judgment-debtor Ganpat Singh on the ground  that  as the  application  was  filed more than one  year  after  the confirmation  of  sale, it was barred  by  limitation  under Article 134 of the Limitation Act. 360     It  was held by the learned District Judge that in  view of  the provision of Explanation I1 of section 47 which  was inserted  in  the Code by Section 20 of the  Code  of  Civil Procedure  (Amendment) Act, 1974, Article 136 prescribing  a period  of limitation of 12 years for the execution  of  the decree  and  not  Article 134 of the  Limitation  Act  would apply.  In  that view of the matter,  the  learned  District Judge held that the application was not barred by limitation as  contended on behalf of the judgment-debtor and  directed issuance  of  the warrant of possession in  respect  of  the disputed property.     Being  aggrieved by the said order of the  learned  Dis- trict Judge, the judgment-debtor filed a revisional applica- tion under section 115 of the Code of Civil Procedure before a learned Single Judge of the High Court. The view expressed by the learned District Judge commended to the learned Judge of  the  High Court. The learned Judge took a  similar  view that after the insertion of Explanation II to Section 47  of the  Code of Civil Procedure, a purchaser of property  at  a sale in execution of a decree would be deemed to be a  party

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to the suit in which the decree was passed and all questions relating  to the delivery of possession of the  property  to such  purchaser  of immovable property  would  be  questions relating to the execution of the decree and, as such,  Arti- cle  136  and not Article 134 of the  Limitation  Act  would apply.  Further,  the learned Judge held, inter  alia,  that after the amendment of the Code of Civil Procedure,  Article 134  and Article 136 of the Limitation Act became so  incon- sistent  that  both could not exist and,  relying  upon  the principle  that  in  cases where two  articles  are  equally applicable, the rule that the article which keeps alive  the right of the party must be preferred, the learned Judge held that  Article 134 stood impliedly repealed of section 47  of the  Code  of Civil Procedure read with Article 136  of  the Limitation  Act.  In that view of the  matter,  the  learned Judge dismissed the revisional application of the  judgment- debtor under section 115 of the Code of Civil Procedure. The learned Judge, however, granted a certificate to the  appel- lants  for  appeal to this Court under Article 134A  of  the Constitution of India. Hence this appeal.     At  this stage, it may be stated that the  parties  have settled their disputes after the hearing was concluded,  the respondent decree holder having agreed to relinquish all his rights  as the auction purchaser upon the appellants  paying him a sum of Rs. 1,28,000. The terms of such settlement will be  stated hereafter. In spite of such settlement, we  think we  should consider the view expressed by the  learned  dis- trict Judge and the learned Single Judge of the High Court 361  that after the amendment of section 47 of the Code of Civil Procedure,  an  application under Order XXI Rule 95  of  the Code  will be governed by Article 136 of the Limitation  Act and  that, as held by the learned Judge of the  High  Court, Article  134  stands impliedly repealed by section  47  read with Article 136 of the Limitation Act.     Both the learned District Judge and the learned Judge of the  High Court have been greatly influenced by the fact  of the insertion of Explanation II under section 47 by the Code of  Civil  Procedure (Amendment) Act, 1976.  Explanation  II provides as follows:-               "Explanation II. (a) For the purposes of  this               section, a purchaser of property at a sale  in               execution of a decree shall be deemed to be  a               party  to  the suit in which  the  decree’  is               passed; and                         (b)  all questions relating  to  the               delivery  of  possession of such  property  to               such purchaser or his representative shall  be               deemed to be questions relating to the  execu-               tion, discharge or satisfaction of the  decree               within the meaning of this section."     Under clause (a) of Explanation II the auction-purchaser shall  be  deemed  to be a party to the suit  in  which  the decree  is passed. Under clause (c), all questions  relating to  the delivery of possession shall be deemed to  be  ques- tions  relating to the execution, discharge or  satisfaction of  the decree within the meaning of section 47. Section  47 bars  determination of any question relating to  the  execu- tion,  discharge  or satisfaction of the decree in  a  suit. Such question shall be determined by the executing court. As has been already noticed, in view of clause (a) of  Explana- tion II, the auction-purchaser shall be deemed to be a party to  the suit in which the decree is passed and under  clause (b) of Explanation II all questions relating to delivery  of possession  shall be deemed to be questions relating to  the

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execution,  discharge  or satisfaction of the  decree.  Such questions,  therefore,  are to be determined  by  the  court executing the decree and not by a separate suit.     Section 47 itself has nothing to do with the question of limitation. Article 136 prescribes a period of limitation of 12  years  for the execution of a decree from  the  date  on which  the decree or order becomes enforceable or where  the decree or any subsequent order directs any payment of  money or the delivery of any property to be made at a certain date or at recurring periods when default in making any 362 payment or delivery in respect of which execution is sought, takes place. After a decree is out into execution within the period  of limitation under Article 136, questions  relating to  execution, discharge or satisfaction of the  decree  may arise  and such questions including the question as  to  the delivery of possession shall be determined by the  executing court. When a property is sold in execution of a decree,  an application  for  setting aside the sale may be  made  under Rules 89, 90 or 91 of Order XXI of the Code of Civil  Proce- dure  by  the persons and on grounds as  mentioned  therein. Such  an  application has also to be made  within  the  pre- scribed period of limitation of sixty days from the date  of sale under Article 127 of the Limitation Act, 1963.  Article 134  prescribes a limitation of one year for an  application for  delivery  of  possession by a  purchaser  of  immovable property at a sale in execution of a decree. The  limitation of one year will be computed from the date the sale  becomes absolute. Such an application for delivery of possession can be filed only after the decree is put into execution  within the period of limitation as prescribed by Article 136 of the Limitation  Act.  The periods of  limitation  prescribed  by Articles  136  and 134 are for two different  purposes,  the former being for the execution of a decree for possession in respect  of  which decree is passed and the  latter  for  an application for delivery of possession of immovable property which  is purchased in the course of execution of a  decree. The two articles have nothing in common for their  operation and  it is not readily understandable how the  two  articles stand in conflict with each other. An application for deliv- ery of possession of immovable property purchased in  execu- tion cannot, by any stretch of imagination, be construed  as an  application for execution of a decree for possession  of property so as to invoke the provision of Article 136 of the Limitation Act. Merely because the auction-purchaser will be deemed  to  be a party in the suit in which the  decree  has been passed, as provided in clause (a) of Explanation II  to section  47  of  the Code, and by virtue of  clause  (b)  of Explanation II all questions relating to delivery of posses- sion of the property shall be deemed to be questions  relat- ing  to execution, discharge or satisfaction of  the  decree within the meaning of section 47, an application for  deliv- ery  of  possession under Order XXI Rule 95 of the  Code  of Civil  Procedure cannot be equated with an  application  for the  execution of a decree for possession so as to apply  12 years’ period of limitation as prescribed by Article 136  of the Limitation Act.     If it is held that Article 136 would apply to an  appli- cation for delivery of possession under Order XXI Rule 95 of the  Code, it may lead to an absurdity. Suppose a decree  is put  into  execution  on the last day of  limitation  of  12 years. Obviously, the sale of any property in 363 execution of the decree will take place after the expiry  of 12  years  and, therefore, no application  for  delivery  of

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possession of the property of the auction-purchaser will  be maintainable  as 12 years have already passed from the  date of the decree. If Article 136 is held to apply to an  appli- cation  for delivery of possession, then for the  very  same reason  it  will also apply to an  application  for  setting aside sale. In other words, an application for setting aside sale  can also be made within a period of 12 years from  the date  of decree irrespective of the date of sale,  which  is absurd on the face of it.     It appears that the learned Judge of the High Court  has misunderstood  the scope of the provision of section  47  of the  Code of Civil Procedure and that of the  provisions  of Articles 134 and 136 of the Limitation Act, 1963. It may  be that  before  the amendment of section 47 of  the  Code,  an auction-purchaser could file a suit for recovery of  posses- sion of the property within 12 years from the date of  sale, but in view of the amendment of section 47 of the Code  such a  suit cannot be filed. But that is no ground  for  holding that  Article  136 of the Limitation Act would apply  to  an application for delivery of possession. Under the old  Limi- tation  Act of 1908, an application for delivery of  posses- sion could be made within three years from the date on which sale  became absolute as prescribed by Article 180  of  that Act, but under Article 134 of the Limitation Act, 1953  such an application can be made within one year from the date  on which  sale became absolute. Thus the period  of  limitation for  delivery  of possession of property  purchased  at  the court  sale has been reduced to a considerable  extent,  but that also cannot be taken into consideration for the purpose of  interpretation of the provisions of the Limitation  Act. It  is for the Legislature to prescribe the period  and  the Court is only to see whether any particular application  has been  filed  within  that period. In the  instant  case,  as stated already, the scope of Articles 134 and 136 and  their subject-matters being completely different, the question  of implied repeal of Article 134, as held by the learned  Judge of the High Court, does not at all arise. We would,  accord- ingly,  hold that Article 134 will apply to  an  application under  Order XXI Rule 95 of the Code of Civil  Procedure  by the  auction-purchaser  for delivery of  possession  of  the property sold in execution of a decree.     It  may be mentioned here that Mr.  Krishnamurthy  Iyer, learned  Counsel  appearing on behalf of  the  decree-holder respondent, has not made any attempt to support the judgment of  the High Court on the ground of amendment of section  47 of  the Code of Civil Procedure or on the ground of  implied repeal of Article 134 of the Limitation Act by 364 the amended section 47 of the Code read with Article 136  of the Limitation Act. On the contrary, it is contended by  him that there can be no doubt that limitation under Article 134 commences  from the date when the sale becomes absolute.  He has,  however,  sought  to support  the  conclusion  of  the learned  Judge  of the High Court that the  application  for delivery  of  possession of the property is  not  barred  by limitation on another groups which will be stated presently. Under  Order XXI Rule 92 where no application is made  under Rule  89, Rule 90 or Rule 91 where such application is  made and disallowed, the court shall make an order confirming the sale,  and thereupon the sale shall become absolute.  It  is submitted by the learned Counsel that it is not correct that the  sale becomes absolute only under the  circumstances  as mentioned in Rule 92, and that apart from the provisions  of Rules  89, 90 and 91 of Order XXI of the Code,  an  auction- sale can be challenged on grounds other than those mentioned

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in  the said Rules. Counsel submits that if  an  application for  setting  aside sale is made and disposed of,  the  sale will become absolute after the disposal of such application, even  though the application is not one as  contemplated  by Rules 89, 90 or 91 of Order XXI of the Code.     In  this connection, the learned Counsel  has  drawn-our attention to an application for setting aside the sale  made by  the 4th judgment debtor on January 27, 1979  on  grounds other  than those mentioned in Rules 89, 90, or 91. But  the said application was dismissed by the learned district Judge on  July  21, 1979. It is submitted by the  learned  Counsel that  on the disposal of that application on July 21,  1979, the  sale became absolute and the  decree-holder  respondent having  filed the application for delivery of possession  on July 17, 1980, that is, within one year from July 21,  1979, it should be held that the application was quite within  the period  of  limitation as prescribed by Article 134  of  the Limitation  Act. In support of the contention,  the  learned Counsel  has  placed reliance upon a decision of  the  Privy Council in Chandra Mani Saha and others v. Anarjan Bibi  and others,  AIR 1984 PC 134. In that case, in interpreting  the words "when the sale becomes absolute" in Article 180 of the old  Limitation  Act, ’1908, the Privy Council  observed  as follows:-               "Upon consideration of the sections and orders               of  the Code, their Lordships are  of  opinion               that  in construing the meaning of  the  words               "when the sale becomes absolute" in Art.  180,               Lim.  Act, regard must be had not only to  the               provisions of O. 21. R. 92(1) of the  schedule               to  the Civil Procedure Code, but also to  the               other material sections and               365               orders  of  the Code,  including  those  which               relate  to appeals from orders made  under  O.               21,  R. 92(1). The result is that where  there               is an appeal from an order of the  Subordinate               Judge,  disallowing  the  application  to  set               aside  the  sale,  the sale  will  not  become               absolute within the meaning of Art. 180,  Lim.               Act,  until the disposal of the  appeal,  even               though  the  subordinate Judge may  have  con-               firmed  the sale, as he was bound to do,  when               he  decided  to disallow the  above  mentioned               application.     We may now consider the above contention of the  learned Counsel  for the respondent decree-holder. It has  been  al- ready  noticed that on January 2, 1979 while dismissing  the application  of the judgment-debtor under Order XXI Rule  90 of  the Code of Civil Procedure, the learned District  Judge also  confirmed  the  sale. The said order  of  the  learned District  Judge confirming the sale is binding not  only  on the judgment-debtor, who made the application under Order 21 Rule  90,  but also on all other parties  to  the  execution proceedings including the 4th judgment-debtor.  Accordingly, there can be no doubt that the application filed by the  4th judgment-debtor praying for the setting aside of the sale on grounds  other than those mentioned in Rules 89, 90 and  91, was  not  maintainable after the confirmation of  the  sale. Indeed,  by the order dated July 21, 1979 the  learned  Dis- trict  Judge  while dismissing the application  of  the  4th judgment-debtor observed that after the confirmation of  the sale, the court was not authorised to entertain the applica- tion. We do not think that the decision of the Privy Council in  Chandra  Mani’s case (supra) lends any  support  to  the

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contention  of  the  learned  Counsel  for  the   respondent decree-holder that an auction-sale can be set aside even  on grounds  other than those mentioned in Rules 89, 90 and  91. All that has been ruled in that decision is that in constru- ing  the meaning of the words "when the sale  becomes  abso- lute" in Article 180 of the old Limitation Act, regard  must be had not only to the provision of Order XXI Rule 92(1)  of the Code, but also to the other material sections and orders of  the  Code including those which relate to  appeals  from orders made under Order XXI Rule 92(1). No provision of  the Code  has been pointed out to us under which a sale  can  be set  aside apart from the provisions of Rules 89, 90 and  91 of order XXI of the Code. There can be no doubt that when an application  for setting aside the sale is made,  the  order passed by the executing court either allowing or  dismissing the  application will be final and effective subject  to  an appeal that may be made under the provisions of the Code. It is  inconceivable that even though no appeal has been  filed against an order dismissing an applica- 366 tion  for  setting aside the sale, another  application  for setting aside the sale can be made without first having  the order  set aside. Such an application will be barred by  the principle of res ludicata. In the circumstances, there is no merit  in  the contention made on behalf of  the  respondent decree-holder  that the application for delivery of  posses- sion  having been made within one year of the  dismissal  of the application of the 4th judgment-debtor for setting aside the  sale,  it was within the period of limitation  as  pre- scribed by Article 134 of the Limitation Act.     In  Kamakshi  Ammal and another v.  Arukkani  Ammal  and another, AIR 1957 Mad. 440, which has been relied on by  the learned Counsel for the decree-holder respondent, there  was an application under Order XX1 Rule 58 of the Code of  Civil Procedure  by  one Nagammal who claimed under  a  possessory mortgage  and that claim was allowed on June 14, 19 13.  The decree-holder  filed a suit to set aside this claim  as  she was  entitled to do under the Code before it was amended  in 1976.  The suit terminated in a compromise decree on  August 15, 1944 and the application under Order XXI Rule 95 of  the Code was made by the decree-holder on August 14, 1947,  that is, within three years from the date when the claim-suit was disposed  of. It was held by the Madras High Court that  the sale  could  not be said to have become  absolute  till  the claim-suit  was finally disposed of on August 15,  1944.  In holding that, the Madras High Court has placed reliance upon the  decision  of the Privy Council in Chandra  Mani’s  case (supra) to the effect that though the third column of  Arti- cle  190 of the old Limitation Act refers to the  date  when the sale becomes absolute, that clause must be read not only with the provision of Order XXI Rule 92(1) of the Code,  but also  with the other material provisions and orders  of  the Code.     In  our  opinion the above decision of the  Madras  High Court in Kamakshi Ammal’s case does not support the  conten- tion  of the respondent decree-holder. Order XXI Rule 58  of the Code is a material provision relating to any claim  that may  be preferred or any objection that may be made  to  the attachment  of  any property in execution of a  decree.  Any sale  that  is held would, undoubtedly, be  subject  to  the order that may be passed under Order XXI Rule 58 of the Code and,  thereafter, as provided in the Code before its  amend- ment  in 1976, the result of a suit that may be filed  chal- lenging such order passed by the executing court under Order XXI  Rule 58. But after a sale becomes absolute on the  dis-

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missal of the application of the judgment debtor’s claim for setting aside the sale, another application for setting 367 aside  the sale by the judgment-debtor is  not  maintainable and the period of limitation as prescribed by Article 134 of the  Limitation Act cannot be computed from the date of  the dismissal  of the second application for setting  aside  the sale.     The  decision  of  the Madras High  Court  in  Dadrabahu Nainar v. Devendra Nainar, ILR (1969) 1 Mad. 175, relied  on by  the respondent decree-holder, does not appear to  be  of any  assistance to him. In that case, the Madras High  Court has  only  followed  the decision of the  Privy  Council  in Chandra  Mani’s case (supra). In an earlier decision of  the Full Bench of the Madras High Court in Muthu Korakkai Chetty v.  Madar Ammal, ILR 43 Mad. 185 FD, also relied on  by  the respondent  decree-holder, what happened was that  after  an auction-sale had been confirmed without opposition on  April 26,  1918, an application was made on January 13, 19  18  to set it aside on the ground of fraud, and it was set aside on June 25, 19 18 in respect of a part of the properties  sold. The  auction-purchaser  applied  on February  17,  1917  for delivery  of  the remaining properties. It was held  by  the Full bench that the application was not barred under Article 180  of  the old Limitation Act as time should  be  computed from  the date of the order disallowing the petition to  set aside the sale on the ground of fraud and not from the  date of  the first confirmation. This decision has been  strongly relied  upon by the learned Counsel for the  respondent  de- cree-holder and it is submitted that even though the  appli- cation for setting aside the sale on the ground of fraud was made  after the sale was confirmed, the Full Bench took  the view that the period of limitation under Article 180 of  the old  Limitation Act should be computed from the date of  the order  disallowing the application to set aside the sale  on the  ground  of  fraud and not from the date  of  the  first confirmation.  On  the basis of this decision, it  is  urged that in the instant case also the period of limitation under Article 134 should be computed from the date of dismissal of the second application for setting aside the sale.     We  are  enable to accept the contention.  In  the  Full Bench decision of the Madras High Court the application  for setting  aside the sale was made by the sons of  a  deceased judgment-debtor and the remaining judgment-debtors, and  the application  in so far as it was made by the sons of  a  de- ceased  judgment-debtor was admitted out of due time on  the ground of fraud. In our opinion the High Court was justified in  entertaining the application on the ground of  fraud  by the sons of a deceased judgment-debtor who were not  brought on the record as the legal representatives of their deceased father.  The application was, therefore, quite  maintainable and, even though the sale was confirmed 368 and became absolute under Order XXI Rule 92, it was  subject to  the  disposal of the application for setting  aside  the sale on the ground of fraud. The facts of this decision  are quite  different from those of the instant case  before  us. The  application by the judgment-debtor not being  maintain- able  in law, the respondent decree-holder was not  entitled to  compute the period of one year under Article 134 of  the Limitation  Act  from the date of dismissal  of  the  second application by the 4th judgment-debtor. The contention  made on  behalf of the respondent decree-holder is  without  sub- stance and is overruled.     In  view of the discussion made above, we set aside  the

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judgment  of the learned Single Judge of the High Court  and that of the learned District Judge.     As  stated already, the parties have settled their  dis- putes, the respondent decree-holder having decree to  relin- quish  all  this rights as the  auction-purchaser  upon  the appellants  paying  him a sum of Rs. 1,28,000. We  are  told that said sum has been deposited in this Court in the  above appeal  and, as prayed for by the parties, we by  our  order dated May 5, 1987 set aside the execution sale and  directed that the amount of Rs. 1,28,000 lying in this Court would be paid  to the respondent decree-holder or to his  Counsel  in full settlement of the mortgage decree. By the said order we have also recorded full satisfaction of the mortgage  decree passed in S.C. No. 10/73 on the file of the District  Judge, Jaipur  City,  obtained  by  the  respondent  decree  holder against the appellants and others. It has also been recorded in the order that the decree-holder auction-purchaser has no sort of claim against the appellants under the mortgage deed in  question  or the decree passed thereon.  The  two  suits which have been filed by the decree-holder auction-purchaser against  the  Posts & Telegraph Department for  recovery  of arrears of rent in respect of the suit premises have, on the prayer made on behalf of the decree-holder  auction-purchas- er, been directed to be dismissed by the Trial Court without costs, since the money payable thereunder has been deposited in this Court by the Posts & Telegraph Department. The Posts & Telegraph Department has been directed to pay the rent  of the premises in suit in their occupation including  arrears, if any, which may have accrued subsequent to the period  for which rent has already been deposited in this Court, to  the appellant treating them as landlords.     Even  though  the matter has been  settled  between  the parties  as above, we felt the necessity of laying down  the correct legal position and, hence, this Judgment. N.V.K. 369