Provisions of Article 134 Limitation Act held applicable.

M.M. Ismail, C.J.

1. This is an appeal against the judgment and decree of Mohan, J., dated 22nd August, 1975 made in Second Appeal No. 1561 of 1971. The suit property originally belonged to the deceased first respondent and respondents 2 and 3 herein. O. S. No. 44 of 1958 was filed by one Kuppanna Gounder against Chinnaswami Gounder, the first defendant in the present suit, on the foot of a, promissory note and that suit was decreed. Pending suit, the plaintiff in O.S. No. 44 of 1958, namely, Kuppanna Gounder died, and his legal representatives, namely, his son and widow were added as plaintiffs 2 and 3. In execution of the decree in E.P.R. No. 184 of 1963 the property was brought to sale in Court-auction and was purchased by the appellant herein for a sum of Rs. 6,005 on 6th February, 1964. The sale was confirmed on 5th April, 1965. When the appellant wanted to recover possession, that was obstructed by defendants 2 and 3 in the suit. Hence, the appellant filed O. S. No. 439 of 1967 on the file of the Court of the District Munsif, Erode, for delivery of possession and also for recovering past and future mesne profits. The defence put forward by the defendants was that the remedy of the auction-purchaser was only to file an application under Order 21, Rule 95 of the Code of Civil Procedure for delivery of possession of the suit property and such remedy had become barred, since the appellant did not file such an application within one year from the date of the confirmation of the sale, and the suit as such was not maintainable in view of the bar under Section 47 of the Code of Civil Procedure. The learned District Munsif while holding that the appellant had acquired title to the property by virtue of the sale certificate, namely, Exhibit A.1 dated 5th April, 1965, held that Section 47 of the Code of Civil Procedure was not a bar to the maintainability of the suit and, therefore, decreed the suit with past mesne profits. With regard to the future mesne profits, the learned District Munsif directed the same to be decided in separate proceedings. The respondents herein filed A.S. No. 445 of 1970 on the file of the District Judge, Coimbatore East at Erode, and that appeal failed. It is thereafter the respondent preferred the second appeal before this Court Mohan, J., in the judgment under appeal held that the suit was barred under the provisions of Section 47 of the Code of Civil Procedure. However, he considered the submission made on behalf of the appellant herein that the Court has the power to convert the suit into an application under Section 47 and dispose of the matter. The learned Judge was willing to convert the suit into an application, but held that even as an application, the same was barred by limitation. According to the learned Judge, it is Article 134 of the Schedule to the Limitation Act 1963, that applies and as per that Article the period of limitation was one year from the date of the confirmation of the sale and in the present case the confirmation was effected on 5th April, 1965 and the suit was filed on 21st March, 1967 beyond the period of one year and consequently even treating the suit as an application under Section 47 of the Code of Civil Procedure, the application was barred by limitation, with the result, the learned Judge allowed the second appeal and set aside the judgments and decrees granted by the Courts below in O.S. No. 439 of 1967 and in A.S. No. 445 of 1970. However, the learned Judge granted leave to appeal, and hence the present appeal' comes up for disposal.

2. Having regard to the decision of the Supreme Court in Harandrai Badridas v. Dabidutt Bhagwati Prasad and Ors., the learned Counsel for the appellant-plaintiff does not challenge the conclusion of the learned Judge that a suit did not file and only an application under Section 47 of the Code of Civil Procedure, lay. In view of this, the only question that we have to consider is whether the conclusion of the learned Judge that ev