The sale becomes absolute on the dismissal of an appeal against an order disallowing an application to set aside the sale, and the limitation for filing an application for delivery of possession starts from the date of dismissal of the appeal.

N.L.Untwalia, J.

1. This is a decree-holders application under Sec.115 of the Code of Civil Procedure, hereinafter called the Code, from the order dated 14-5-64 passed in execution case No. 101 of 1959 by the learned Munsif of Aurangabad holding that the application for delivery of possession is barred by time.

2. The properties over which delivery of possession was prayed for by filing an application under Order 21 Rule 95 of the Code were sold on the 22nd of May, 1961 in court auction and were purchased by the decree-holders. On 3rd of June, 1961. Bhagawan Das, opposite party No. 4, one of the judgment-debtors, filed miscellaneous case No. 139 of 1961 under Sec. 47 of the Code for setting aside the sale. Raghunandan Prasad, opposite party No. 3, another judgment debtor, filed another miscellaneous case No. 47 of 1902 on the 28th February. 1962 under the same provision of law, i.e., Section -17 of the Code, taking the point that the properties were not liable to be sold in execution of the decree in view of the provisions of law contained in Sec. 49 M of the Bihar Tenancy Act; this point had not been taken by opposite party No. 4 in miscellaneous case No. 139 of 1961. The latter case was dismissed for default on the 24th of April, 1962 but miscellaneous case No. 47 of 1962 proceeded to trial.

As it appears, the only point which the judgment-debtors wanted to press was the one taken in this case. This miscellaneous case was also dismissed on the 30th of April, 1962 by the execution court taking the view that the point was barred on the principle of res judicata After dismissing this case the execution court confirmed the sale on the same date, i.e. on 30-4-62. Miscellaneous Appeal 51/25 of 1962 was preferred by opposite party No. 3 in the lower appellate court. This appeal was dismissed on the 29th of June. 1963 by the Subordinate Judge, 1st Court, at Gaya, on two grounds (i) that the point was barred by res judicata as held by the execution court and (ii) that the appeal was defective as one of the heirs of the deceased, decree-holder had not been made party to the appeal. The application under Order 21 Rule 95 of the Code for delivery of possession was filed by the decree-holders on the 4th of April. 1964.

This has been held to be barred by limitation by the learned Subordinate Judge on the ground that the limitation started to run on the 30th of April, 1962, and reading the provisions of Article 180 of the Limitation Act of 1908 with those of Article 134 of the Limitation Act of 1963 and Sec.30 of the new Act, it was barred by limitation. It may be stated here that the fact that there was a miscellaneous appeal filed, as stated above, does not seem to have been brought to the notice of the execution court as it does not find mention or discussed in its judgment This fact, however, was stated in the civil revision application. It was not controverted by the other side, and a certified copy of the judgment of the Subordinate Judge, 1st Court at Gaya, dismissing miscellaneous appeal No. 51/25 of 1962 on the 29th of June, 1963 has been filed before, and shown to, us. Since this was a part of the record of the execution case, we thought it proper to take into consideration this judgment, and the point which arises will be decided with reference to the fact that the said miscellaneous appeal arising under the circumstances narrated above was dismissed on 29th of June, 1963.

3. Under Article 180 of the Limitation Act of 1908, an application by a purchaser of immovable property at a sale in the execution of a decree for delivery of possession could be made within 3 years from the date when the sale became absolute. The period for such an application under Article 134 of the new Limitation Act has been made shorter, and it is one year only. But the starting point in the third column is the same, namely, "when the sale becomes absolute".

4. In Chandra Mani Saha V/s. Anarjan Bibi, AIR 1934 PC 134 it was held --"Upon considerat