Applicability of provisions of Sections 134 and 136 discussed.

AR.Lakshmanan, J: The above civil revision petition was filed against an order, dated 2. 1990 in unnumbered E.A.No. ...... of 1989 in O.S.No. 172 of 1973 on the file of the Subordinate Court, Mayiladuthurai. The said E.A., for delivery was dismissed by applying the principles laid down by this Court in the decision reported in Devendra v. Badrabagu, I.L.R. (1986)2 Mad. 72 as barred by limitation. It was contended before the lower court that since delivery was already ordered within one year from the date when the sale became absolute in E.A.No.333 of 1982, the present application was only to execute or give effect to that order of delivery and that therefore Art. i 34 of Limitation Act cannot have any application, for that Article only applies to an application for delivery and it does not apply when the application had already been ordered. According to learned counsel for the petitioner, Art. 136 of the Limitation Act is the proper provision to be applied because that article applies not only to a decree but also to an order of a court, which is executable as a decree. The decision of V.Balasubramanyan, J. in the decision reported in Perumal v. Ramachandra Padayachi, (1982)1 M.L.J. 65: 94 L.W. 674 was cited by the petitioner’s counsel in support of his contention. The Lower Court however dismissed the said execution application. Aggrieved against the same, the above civil revision petition was filed by the petitioner/decree-holder.

2. When the above civil revision petition was listed before Jagadeesan, J. the learned Judge directed the Registry to place the papers before the Honourable Chief Justice to get suitable orders to have the civil revision petition itself posted before a Division Bench, in view of the conflicting views. On 23. 1996, Jagadeesan, J. passed the following order and referred the matter to a Division Bench of this court: ‘The decree-holder in O.S.No.12 of 1973 on the file of Subordinate Judge’s Court, Mayiladuthurai is the petitioners and the respondents are judgment-debtors. The petitioner obtained a decree and in the execution petition, he purchased the property. The petitioner filed E.A.No.333 of 1982 for delivery and the same was dismissed on 33. 1983 though delivery was ordered by 13. 1982. Subsequently, the petitioner filed several E.As., for delivery and those applications were dismissed for non-prosecution even though delivery was ordered. The petitioner filed E.A., in September, 1989 seeking execution of the decree for delivery of possession by appointment of a Receiver. The said application was dismissed by the lower court. Against the same, the present C.R.P. has been filed. Though the respondents had been served, they have not chosen to appear either in person or through counsel.

3. The counsel for the petitioner contended that the delivery was ordered as early as on 13. 1982 but the order was not given effect to because of the non-assistance of the auction purchaser. Subsequent to that also, several applications had been filed for delivery and the same were ordered. Those applications were also dismissed for default in prosecuting the same. The present application is not for delivery but is one to execute the order of delivery already passed i.e., as early as on 13. 1982. It is contended that An 136 of the Limitation Act is applicable to the present case and relied on a decision reported in Perumal v. Ramachandra Padayachi, (1982)2 M .L.J. 65 wherein it has been held that if the execution petition has been filed within one year and the delivery is ordered and due to some reason or other, delivery could not be effected, fresh application for delivery is maintainable and as such the lower court order has to be set aside. A reference is made in the order of the lower court to the judgment reported in Devendra v. Badrabagu, I.L.R. (1986)2 Mad. 72 herein the learned Judge held that the application for delivery of possession is made under Art. 134 of the Limitation Act and hence within