TMI Blog1992 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... e by an agriculturist shall be scaled down in the manner laid in the Act. The debt in excess thereof stands extinguished under section 34. The amount of debt determined after scaling down is an award under section 34 and shall be registered as prescribed under section 38 if a charge of the debt has been created on the properties of the debtors. Under clause (iii) of sub-section (3) of section 38 the award shall be executed as if the court passed an order. Under section 32(2)(v) the court may pass an order for the delivery of possession of any property, notwithstanding any law or contract to the contrary . Award has been defined under section 2(1) to mean an Award made under sub-section (4) of Section 8 or sections 9, 32 or 33 or as confirmed or modified by the court in appeal. Court has been defined to mean the Court of the Civil Judge (Sr. Division) having ordinary jurisdiction in the area where the debtor ordinarily resides and if there is no such Civil Judge the Court of the Civil Judge (Jr. Division) having such jurisdiction and includes any Court to which an application may be referred for desposal under section 13 A. Thus it is clear that notwithstanding any la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of delivery of possession. The High Court declined to interfere on the finding that it is eminently just and proper order . Shri Bhatt, the learned senior counsel for the appellant raised three contentions before us. It is firstly contended that the evidence do disclose that the mortgagee purchased the hypotheca at an auction conducted by the Collector and thereby he became the owner and the appellants are not liable to deliver possession of the lands to the respondents. We find no force in the contention. It is to note that from Exh. 40 and 41 challans, it would appear that a sum of ₹ 1,968 and ₹ 657 respectively was deposited. But as pointed out by the Civil Court it is not clear that the said payments were made towards the sale price or pursuant to the alleged auction of suit property. The best evidence namely the notification to conduct sale for arrears; the sale proceedings and the certificate of sale have not been placed on record. A letter of 1964 purported to have been written long after the alleged sale made in 1955 that there was no need for issue of sale certificate as the appellants remained in possession. It is difficult to accept this letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation different from the one prescribed by the schedule of the Limitation Act. To a prescription of such limitation, section 3 would apply by fiction as if it was prescribed in the schedule. In that event period of limitation prescribed in the local or special law to the suit, appeal or application, sections 4 to 24 inclusive would apply. When a person is obliged to institute a suit for possession of any property then by operation of section 27 at the determination of the period thereby limited his right to such property shall be extinguished. Section 3 of the Limitation Act bars institution of his suit after the prescribed period and the suit shall be dismissed though limitation has not been set up as a defence. The word suit for possession referred to in section 27 is a suit in respect of which the period of limitation is prescribed by the schedule to the Limitation Act. Under Section 2(1) of the Limitation Act suit does not include application. Section 3(2)(i) amplifies that for the purpose of Limitation Act a suit is instituted in an ordinary course when the plaint is presented to proper officer. Section 27 extinguishes the right to property at the determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation for recovery of the possession under the Act which is a beneficial legislation. Section 51A expressly bars the jurisdiction of the Civil Court. It would follow that where a person could not or need not have suit for possession, there is no question of any determination of the period of limitation to his instituting a proceeding or a suit for possession. Consequently, no question of the applicability of section 27 would arise. Thereby the legislature manifested, by necessary implication, that the period of limitation is not applicable to an application for recovery of possession under the Act. The application for possession is not barred by limitation. Moreover, a suit for possession by the owner of any property will not be barred if the possession of the defendant is not adverse to him. So hostile title to the knowledge of the plaintiff must be asserted and proved. The contention, therefore, that the appellants perfected title by adverse possession is devoid of substance. Remanbhai Trikamlal s case concerns limitation to recover the debt crystalised in the award. The Full Bench held that the limitation prescribed under Art. 136 of the Limitation Act, 1963 applies t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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