BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 23.09.2022 PRONOUNCED ON: 30.09.2022 CORAM : JUSTICE N.SESHASAYEE S.A.(MD) No.1145 of 2011 K.Palanichamy Gounder ...Appellant/1^st respondent/plaintiff Vs

1.Kandasamy Gounder ...1^st respondent/appellant/1^st Defendant Chinnappa Gounder (Dead)

2.P.Rajendran 3.P.Kaliappan

4.P.Kandhasamy

5.C.Kaliappan

6.C.Dhandapani

7.Muthammal

8.K.P.Dhandapani ... Respondents 2 to 8/Respondents/Defendants 1 to 7 Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 04.07.2011 in A.S.No.38 of 2007 passed by the Sub-Court, Palani reversing the judgment and decree dated 22.03.2007 in O.S.No.15 of 1997 passed by the District Munsif Court, Palani.

For Appellant : Mr.S.Anand Chandrasekar for M/s.Sarabhuman Associates For respondents : Mr.S.Arunachalam for R1 Mr.J.Barathan for R8 No-appearance for R2 to R7

JUDGMENT

The plaintiff is the appellant. He laid a suit in O.S.15/1997 for partition of two out of three items of properties and for declaration and recovery of possession for the remaining property. He was successful before the trial court, but suffered a reversal in his fortune before the first appellate court. For narrative convenience, the parties are referred to as per their rank before the trial Court.

2.1 This appeal throws up two questions for determination: (a) Does Explanation II(b) of Sec.47 CPC bar a suit for recovery of property by an auction purchaser; and (b) Is there a period of limitation for an auction purchaser of a fractional share of the judgement debtor's property to seek partition vis-a-vis the other co-sharers or co-owners?

2.2 These are issues not unfamiliar to the Court, as they not infrequently visit its corridors. And they have been differently addressed. What adds a difference to the present case however, is that this Court is specifically required to interpret the nature of questions that would fall within the Explanation II(b) to Sec.47 CPC that might invite bar of suits under Sec. 47(1). It calls for an interpretative understanding of the phraseology employed by the legislature and to gather its import in the context of the scheme of the Code.

3.1 Before the core issue, if not the soul-issue is addressed, the facts of the case are briefly stated as under:

 A decree for payment of money was passed in O.S.638 of 1978. In an Execution Proceedings initiated by the decree-holder, the properties of the defendant/Judgement-debtor were brought to court-auction sale. It comprised of (i) undivided 2/3 share in item No.1, (ii) ¼ in item 3 of the suit properties, and (iii) the whole of item No.2 property.

 The court-auction took place on 14.11.1983 in which the plaintiff herein was declared as the successful bidder. On 18.01.1984, the sale was confirmed by the Execution Court, and Ext.A.1, sale certificate was issued to the plaintiff.

 The plaintiff then filed an Execution Petition under Order XXI Rule 95 CPC for delivery of the properties covered under Ext.A-1. This petition is stated to have been filed on 21.01.1985, and there is no controversy on this. However, the petition was returned by the Execution Court, presumably on the ground that it was laid beyond one year period provided under Article 134 of the Limitation Act for invoking Order XXI Rule 95 CPC. The petition was re-presented vide E.A.No.356 of

1988 but only after 37 months and 2 days.

 On 30.06.1989, the Execution Court dismissed E.A.No.356 of 1988.

This was challenged by the plaintiff in CRP.No.3160 of 1989. Vide Ext.A.2, order dated 13.01.1995, this Court dismissed the revision and confirmed the order of the Execution Court dated, 30.06.1989.

 Thereafter, on 19.12.1996, the plaintiff laid the present suit for partition of the 2/3 share in item No.1 and ¼ share in item No.3 and for declaration and recovery of possession of item No.2 property. In effect, what the plaintiff did was, when the procedural remedy for obtaining delivery through the Execution Court un