ORDER

1. The defendant in the original suit is in appeal before us. It arises out of a judgment and decree passed by a learned Single Judge of the Karnataka High Court in RSA No. 876 of 1997 whereby and whereunder the judgment and decree passed by the trial court as also the first appellate court were reversed.

2. The basic fact of the matter is not in dispute. The plaintiff-respondent obtained a money decree against the defendant-appellant for a sum of Rs 8865. It initiated an execution proceeding for executing the aforementioned decree. In the said proceeding, a piece of land measuring 5 acres 61 guntas was put on auction. The plaintiff decree-holder himself purchased the suit property in the year 1972. The auction-sale was confirmed in the year 1973. It, however, appears that the appellant herein preferred an execution appeal there against, which was dismissed in 1974. The sale certificate in relation to the aforementioned land was issued in favour of the plaintiff-respondent on 28-11-1980. The respondent did not however take any step to obtain delivery of possession of the said property within a period of one year in terms of Order 21 Rule 95 of the Code of Civil Procedure (CPC). In the year 1998, the plaintiff-respondent filed a suit praying for declaration of title and possession of the suit property, which was dismissed by the trial court.

3. Before the trial court an objection was raised by the appellant to the effect that the suit was barred under Section 47 whereupon a specific issue was framed to the trial being Issue 3, which is in the following terms:

"3. Whether he proves that Section 47 CPC is a bar for this suit?"

The said issue was determined in favour of the defendant-appellant and against the plaintiff-respondent. The aforementioned finding was affirmed by the first appellate court. The High Court by reason of the impugned judgment relying on and on the basis of the decision in the case of Nandarani Mazumdar v. Indian Airlines1 as also the decision in the case of M.C. Subbanna v. Nanjamma2 held that even if the suit was not maintainable, the Court had ample power to direct that the plaint be treated as an application filed by the plaintiff under Order 21 Rule 95 CPC.

4. Mr Balakrishnan, learned Senior Counsel appearing on behalf of the appellant, would raise a short question in support of this appeal. The learned counsel would contend that the High Court despite noticing the binding C decision of this Court in Harnandrai Badridas v. Debidutt Bhagwati Prasad3 sought to distinguish the same, inter alia, relying on the decision in Subbanna case2 although the basis for decision of the Mysore High Court was the minority judgment of Cuming, J. in the case of Kailash Chandra Tarafdar v. Gopal Chandra Poddar4 without considering that this Court in Harnandrai case3 has clearly affirmed the majority decision.

5. It was further pointed out that this Court in Nandarani Mazumdar v. Indian Airlines1 distinguished Harnandrai case3 only to the effect that although the ratio laid down therein is correct but in an appropriate case the court can exercise its inherent jurisdiction to direct that the plaint be treated as an application under Order 21 Rule 95 CPC.

6. Mr Kulkarni, learned counsel appearing on behalf of the respondent, on the other hand, would submit that the suit being governed by Article 136 of the Limitation Act, 1963, the High Court cannot be said to have committed an error in passing the impugned order inasmuch as the sale certificate had been issued on 28-11-1980 and the suit having been filed within eight years therefrom, the same was within the prescribed period of limitation.

7. Order 21 Rule 95 CPC reads thus:

"95. Delivery of property in occupancy of judgment-debtor.-Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certific