A decree-holder is not bound to apply for removal of obstruction under O. 21 R. 97 Civil P. C. and may put in a fresh application for delivery.

JUDGMENT :- The 4th defendant is the appellant. He has preferred this appeal against the order of District Judge, Nellore, directing delivery of certain properties under Order 21, Rule 95 C. P. C. The application that gave rise to this appeal was filed for delivery of property which was purchased by the applicant in execution of his decree obtained on 3-1-1938 on the original side of the High Court of Madras in C. S. 72/34. The decree was transmitted to the District Munsifs Court, Nellore, for execution.

Thereafter, the decree-holder put into execution this decree, brought the properties in question to sale and purchased them himself on the 28th December 1942. Confirmation of sale took place on 4-1-1944. As he could not obtain possession of the property from the judgment-debtor he applied for delivery thereof under Order 21, Rule 95 C. P. C., in E. A. 323 of 1946. But, possession could not be taken as the judgment-debtor caused obstruction. For this reason, the executing court dismissed the application on the 22nd July 1946. The application with which we are now concerned was filed on 4-7-47.

The appellant resisted this application mainly on the ground that it was barred. His objection was that the case is governed by Art. 180 of the Limitation Act which provided a period of three years for an application under Order 21, Rule 95, C. P. C., from the date when the sale becomes absolute. This contention of the appellant was negatived and the property in dispute was directed to be delivered to the respondent, auction-purchaser. On appeal, this order was upheld.

2. In this appeal, the conclusions of the courts below are challenged. It is urged by Mr. Rajeswararao that under Art. 180, it is imperative on the part of the auction-purchaser to file an application within three years of the confirmation of the sale and any application not filed within that time could not be entertained. The point, therefore, for consideration here is whether the second application filed by the respondent beyond three years of the sale becoming absolute is unsustainable.

As supporting his proposition, Mr. Rajeswararao has called in aid a passage in the judgment of the Full Bench of the Madras High Court in Abdul Aziz Sahib v. Chokkan Chettiar, ILR 58 Mad 893 : (AIR 1935 Mad 803) (A). There the main question that arose for determination was whether it was Art. 180 or 182 of the Limitation Act that was applicable in that case. The opinion of the Full Bench was that Art. 180 which was a more specific article would apply to the facts of that case; on that assumption they proceeded to consider whether the application in question was barred.

In that case, the decree-holder applied for delivery of certain lands and a house which were purchased by him. There was no opposition by any one with regard to the lands. But so far as the house was concerned a third party resisted the decree-holder from taking possession thereof. Despite the fact that there was no objection in regard to the lands and possession thereof could be given, the trial court dismissed that application in toto. The question was whether the subsequent application for the same purpose could be regarded either as a continuation of the earlier petition or as a reminder to the court.

This was answered in the affirmative and it was held that the decree-holder was entitled to recover possession of the property concerning which there was no resistance by the judgment-debtor, but the decree-holder had no remedy in execution in respect of the share of the third party and his only remedy was to institute a suit in that regard. Having expressed that opinion, the learned Judges proceeded to observe that "it would be desirable to make some remarks as to the procedure to be observed when a decree-holder purchaser seeks delivery of the properties purchased", etc. The passage relied on by Mr. Rajeswararao occurs at the same page 905 (of ILR Mad) : (at p. 808 of AIR) :

"Unless the executing Courts do their work very caref

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