The central legal point established in the judgment is that a court auction purchaser can file a regular suit for recovery of possession within 12 years by invoking Article 136 of the Limitation Act if an application for delivery under Order 21 Rule 95 is not filed within a year as per Article 134.

1. The Second Appeal is filed against the judgment and decree dated 27.09.2004 in A.S.No.83 of 2002 passed by the learned Subordinate Judge, Periyakulam, modifying the judgment and decree in O.S.No.647 of 1996 dated 27.02.2002 passed by the learned District Munsif, Uthamapalayam.

2. The defendants, who have lost the legal battle in the First Appellate Court, have come forward with this Second Appeal.

3. The respondent as a plaintiff, who is a court auction purchaser, filed a suit for recovery of possession on the basis of the sale certificate issued to him in E.P.No.100 of 1984 in O.S.No.158 of 1982. The defendants 2 to 4, who are the sons of the 1st defendant, are the judgment debtor in O.S.No.158 of 1982. Since the plaintiff had not filed any application under Order 41 Rule 95 CPC for delivery, he had filed a separate suit for recovery of possession and mense profit.

4. The defendants filed a written statement and contested the suit stating that they are not aware of the decree and judgment and the value of the property was Rs.20,350/-, which is a very meager amount. He ought to have filed an application in the executing court for delivery. Therefore, the suit itself is not maintainable.

5. The Trial Court after framing necessary issues, dismissed the suit holding that the plaintiff ought to have filed an execution application under Order 21 Rule 95 CPC and hence, the suit is barred under Section 47 of CPC. Hence he is not entitled for any relief. Against which, the plaintiff preferred an appeal for delivery of possession. The appeal has been allowed holding that the suit is maintainable as per Article 136 of Limitation Act. The suit is filed well within time and granted decree and judgment and after setting aside the impugned judgment and decree passed by the Trial Court. Against which, the present Second Appeal is filed.

6. At the time of admission, this Court has framed the following substantial questions of law:

“(i) Whether the lower appellate court has erred in holding that the suit is maintainable, when there is a clear provision of Section 47 CPC which barred the same”

(ii) Whether lower appellate court has erred in holding that Article 136 of Limitation Act is applicable, when there is specific provision of Article 134 in the Limitation Act for recovery of possession by the auction purchaser?”

7. The learned counsel appearing for the appellants would submit that the suit itself is not maintainable and the same is bar under Section 47 of C.P.C. Since the plaintiff ought to have file an execution application under Order 21 Rule 96 within a year as per the time stipulated under Article 134 of Limitation Act and therefore, the suit is not maintainable.

8. The learned counsel for the appellants relied upon some decisions reported in AIR 1973 SC 2423 (Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and others), and 1985 (2) MLJ 311 (Devendra Nainar Vs. Badrabagu Mainar and others).

9. Resisting the same, the learned counsel appearing for the respondent would submit that the suit is maintainable. Article 134 of Limitation Act is applicable only an application for delivery before the Executing Court, otherwise, Article 136 is applicable.

10. To substantiate the above said contention, the learned counsel appearing for the respondent relied upon several decisions reported in:-

(i) 1996 (5) SC 48 (Pattam Khader Khan Vs. Pattam Sardar Khan and another),

(ii) 2003 (3) CTC 217 (The Nazareth Cooperative Building Society Limited through its Special Officer Vs. Kanakaraj and others),

(iii) 2009 (2) TNLJ 465 (Vaenda and others Vs. D.G. Narasimhan and others), and

(iv) 2012 (2) LW 836 (S. Sivasubramanian Vs. N. Chinnasamy and another).

He would further submit that the decision relied upon by the learned counsel for the appellants reported in 1985 (2) MLJ 311 has been overruled in the judgment reported in 1996 (2) CTC 1 and hence, he prayed for the dismissal of the Second Appeal.

11. Heard the learned counsel appearing for the appellants and