Judgement

DUTT, J. :- This appeal on a certificate granted under Art. 134A of the Constitution is at the instance of the heirs and legal representatives of a deceased judgment-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 Art. 136, 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 cl. (3) of Art. 133 of the Constitution, we have however treated the appeal as one under Art. 136 of the Constitution. The special leave to file the appeal is granted by us.

2. 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 at a sum of Rs. 38,000/-. On September 20, 1978, the judgment-debtor Ganpat Singh, since deceased, the predecessor-in-interest of the appellants, filed an application under O.XXI R. 90, Civil P.C., 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 O. XXI R. 90 C.P.C., were dismissed for default and, consequently, the sale was confirmed by the learned. District Judge, the executing court, on January 2, 1979.

3. On July 17, 1980, that is, more than one year after the sale was confirmed, the decree-holder auction-purchaser filed an application under O. XXI R. 95, C.P.C. 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 Art. 134, Limitation Act.

4. It was held by the learned District Judge that in view of the provision of Explanation II of S. 47 which was inserted in the Code by S. 20 of the Code of Civil Procedure (Amendment) Act, 1974, Art. 136 prescribing a period of limitation of 12 years for the execution of the decree and not Art. 134, 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.

5. Being aggrieved by the said order of the learned District Judge, the judgment-debtor filed a revisional application under S. 115, C. P.C. 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 S. 47, C.P.C. a purchaser 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 possession of the property to such purchaser of immovable proberty would be questions relating to the execution of the decree and, as such, Art. 136 and not Art. 134, Limitation Act, would apply. Further, the learned Judge held, inter alia, that after the amendment of the Code of Civil Procedure, Art. 134 and Art. 136, Limitation Act, became so inconsistent 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 Art. 134 stood impliedly repealed by S. 47, C. P.C. read with Art. 136, Limitation Act. In that view of the matter, the learned Judge dismissed the revisional application of the judgment-debtor u