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Wednesday, January 11, 2017

whether the High Court was right in holding that the application filed by the auction purchaser under Order XXI Rule 95 C.P.C. for delivery of possession of immovable property was barred by limitation. 7. Article 134 of the Limitation Act will apply to an application filed under Order XXI Rule 95 C.P.C. by the auction purchaser for delivery of possession of property sold in execution of a decree. The limitation for filing an application under Order XXI Rule 95 C.P.C. is one year from the date when the sale becomes absolute.= sale confirmation is different from sale become absolute = where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 of the Limitation Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.” [Underlining added] The same view was reiterated in the case of Sri Ranga Nilayan Rama Krishna Rao vs. Kandokori Chellayamma AIR 1953 SC 425. 17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002- an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment- debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expression “when the sale becomes absolute” and not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL  APPEAL NO.4204 OF 2007

UNITED FINANCE CORPORATION                                   ...Appellant

                                   Vs.

M.S.M.                                                               HANEEFA
...Respondent


                                 J U D G M E N T


R. BANUMATHI,  J.


            This appeal arises out of order passed  by  the  High  Court  of
Kerala at Ernakulam allowing the revision in CRP No.894 of  2005  dated  2nd
January, 2006 and thereby dismissing the application filed by the  appellant
under Order XXI Rule 95 C.P.C. on the ground that the application is  barred
by limitation and declining direction for  delivery  of  possession  of  the
immovable property purchased in the court auction sale to the appellant.

2.    Brief facts which led to filing of this appeal are as under:-

The appellant/Corporation-decree holder filed a suit for realisation of  the
suit claim and the said suit was decreed for a sum of  Rs.2,72,100/-   along
with   interest.   In   execution   of   the   decree,   the   property   of
respondent/judgment-debtor was auctioned on 27th October, 2001 and the  same
was purchased by the appellant/decree-holder himself.  The  appellant/decree
holder purchased schedule item No.2 property to an extent of 1 acre  and  50
cents comprised in Survey No.458/1  of  Parassala  Village  along  with  the
building situated therein. The sale was made absolute  on  1st  June,  2002.
Sale certificate was issued to the appellant on 17th  March,  2003.  In  the
meanwhile, the first respondent/judgment-debtor filed an application to  set
aside the  auction  sale  (Order  XXI  Rule  90  C.P.C.)  and  also  another
application for appointment of  the  Commissioner  to  value  the  property.
Both the applications came to be dismissed by  the  executing  court.  Being
aggrieved  by  the   order   dismissing   the   Commissioner's   application
(E.A.No.77/2002),  the  first  respondent/judgment-debtor   filed   revision
before the High Court in C.R.P.No.2829/2002 in  which  the  High  Court  has
granted stay of further proceedings in the execution  petition.   The  Civil
Revision Petition came to be dismissed on 9th July, 2003.

3.    Thereafter, on 30th August, 2003, auction  purchaser  appellant  filed
an application under Order XXI Rule 95 C.P.C. for delivery of possession  of
the immovable property purchased in the court auction  sale.   In  the  said
application by order dated 12th August, 2005, the  executing  court  ordered
delivery of possession which was challenged by  the  judgment-debtor  before
the High Court in  C.R.P.No.894/2005.   By  the  impugned  order  dated  2nd
January, 2006, the  High  Court  allowed  the  revision  and  dismissed  the
application filed by the appellant under  Order  XXI  Rule  95  CPC  on  the
ground that it is barred by limitation.

4.    Challenging the impugned order,  learned  counsel  for  the  appellant
submitted that the court auction  sale  does  not  become  absolute  on  the
passing of a mere order of confirmation of sale as  enjoined  by  Order  XXI
Rule 92(1) C.P.C. but  it  becomes  absolute  only  on  the  termination  of
proceedings initiated to set aside the order confirming the  sale.   It  was
further submitted that the steps taken by the judgment-debtor to  set  aside
the court auction sale were pending consideration before the High  Court  in
C.R.P.No.2829/2002, which proceedings came to  be  terminated  only  on  9th
July, 2003 and hence the application filed by the appellant under Order  XXI
Rule 95  C.P.C.  on  30th  August,  2003  was  well  within  the  period  of
limitation as stipulated under Article 134 of the Limitation Act,  1963.  It
was contended that in terms of Section 15(1)  of  the  Limitation  Act,  the
period of stay granted by the High Court between  17.09.2002  to  09.07.2003
should be excluded and  the  High  Court  erred  in  allowing  the  revision
thereby dismissing the application filed under Order XXI Rule 95  C.P.C.  as
barred by limitation.

5.    Per contra,  Mr.  Basava  Prabhu  S.  Patil,  learned  senior  counsel
appearing for the respondent submitted that as per the  decision  in  Ganpat
Singh (Dead) by LRs. vs. Kailash Shankar and Others (1987) 3  SCC  146,   an
application filed by the auction purchaser under Order XXI  Rule  95  C.P.C.
for delivery of possession of property would be covered by  Article  134  of
the Limitation Act and in the present case limitation will  start  from  1st
June, 2002 i.e. the date of confirmation of sale and hence  the  application
filed on 30th August, 2003 is beyond  the  period  of  limitation.   Placing
reliance on Pattam Khader Khan vs. Pattam Sardar Khan and Anr. (1996) 5  SCC
48, it was further contended that for  filing  application  by  the  auction
purchaser for delivery of possession  (under  Order  XXI  Rule  95  C.P.C.),
issuance of sale certificate is not the  sine  qua  non  and  therefore  the
appellant cannot contend that the application filed on 30th August, 2003  is
within  the  period  of  limitation.  The  learned  senior  counsel  further
submitted  that  the  High  Court  has  noted  the  fact  that   the   first
respondent/judgment-debtor has  already  deposited  the  entire  amount  and
since  the  decree-holder/appellant-Corporation  itself   is   the   auction
purchaser, this is not a fit case warranting  interference  in  exercise  of
extraordinary jurisdiction under Article 136 of the Constitution  of  India,
notwithstanding the leave already granted.

6.    We have carefully considered the rival  contentions  and  perused  the
impugned order  and  other  materials  on  record.  The  point  falling  for
consideration is whether the High  Court  was  right  in  holding  that  the
application filed by the auction purchaser under Order XXI  Rule  95  C.P.C.
for delivery of possession of immovable property was barred by limitation.

7.    Article 134 of the Limitation Act will apply to an  application  filed
under Order XXI Rule 95 C.P.C. by the  auction  purchaser  for  delivery  of
possession of property sold in execution of a  decree.  The  limitation  for
filing an application under Order XXI Rule 95 C.P.C. is one  year  from  the
date when the sale becomes absolute.  Article  134  of  the  Limitation  Act
reads as under:-



|   |Description of application|Period of|Time from which   |
|   |                          |limitatio|period begins to  |
|   |                          |n        |run               |
|134|For delivery of possession|One year |When the sale     |
|   |by a purchaser of         |         |becomes absolute. |
|   |immovable property at a   |         |                  |
|   |sale in execution of a    |         |                  |
|   |decree                    |         |                  |


8.    For better appreciation of the contentions, we  may  recapitulate  the
various dates in seriatum as under:
Date of auction sale                          … 27.10.2001

Confirmation of sale                    … 01.06.2002

Sale certificate                        … 17.03.2003

Stay granted by High Court in force           … 17.09.2002

                                                   till 09.07.2003



Order XXI Rule 95 C.P.C.                      … 30.08.2003

application filed by appellant



9.    The High Court relied upon the decision in Pattam Khader  Khan's  case
(supra) for taking the view that the application filed under Order XXI  Rule
95 C.P.C by the auction purchaser-appellant was barred  by  limitation.  The
High Court held that the issuance of a sale certificate is not sine qua  non
for the maintenance of an application for delivery, since the title  of  the
court auction purchaser becomes complete on the  confirmation  of  the  sale
under Order XXI Rule 92 C.P.C. We may refer to the relevant portion  of  the
judgment in Pattam Khader Khan's case, which reads as under:

“11. Order 21 Rule 95 providing for the procedure for delivery  of  property
in occupation of the judgment-debtor etc.,  requires  an  application  being
made by the purchaser for delivery of possession of property in  respect  of
which a certificate has been granted under Rule 94 of  Order  21.  There  is
nothing in Rule 95 to make it  incumbent  for  the  purchaser  to  file  the
certificate along with the application.  On the sale becoming  absolute,  it
is obligatory on the court though, to issue the certificate.  That may,  for
any reason, get delayed.  Whether there be failure to issue the  certificate
or delay of action on behalf of the court or the inaction of  the  purchaser
in completing the legal requirements  and  formalities,  are  factors  which
have no bearing on the  limitation  prescribed  for  the  application  under
Article 134.  The purchaser cannot seek to  extend  the  limitation  on  the
ground that the certificate has not been issued.  It  is  true  though  that
order for delivery of possession cannot be passed  unless  sale  certificate
stands  issued.   It  is  manifest  therefore  that  the  issue  of  a  sale
certificate is not “sine qua non”  of  the  application,  since  both  these
matters are with the same court.....” [Underlining added]



10.   Order XXI Rule 95 C.P.C. deals with delivery of property in  occupancy
of judgment-debtor. Order XXI Rule 95 C.P.C. reads as under:

“95. Delivery of property  in  occupancy  of  judgment-debtor  –  Where  the
immovable property sold is in the occupancy of  the  judgment-debtor  or  of
some person on his behalf or of some person claiming under a  title  created
by the judgment-debtor subsequently to the attachment of such  property  and
a certificate in respect thereof has been granted under rule 94,  the  Court
shall, on the application of the purchaser, order to delivery to be made  by
putting such purchaser  or  any  person  whom  he  may  appoint  to  receive
delivery on his behalf in possession of the property, and, if  need  be,  by
removing any person who refuses to vacate the same.” [Underlining added]


11.   By careful reading of Order XXI Rule 95 C.P.C., the  language  of  the
provision is indicative that  application  for  delivery  of  possession  of
property purchased in the court auction can be filed  where  “a  certificate
in respect thereof has been granted under Rule  94  of  Order  XXI.   Having
regard to the language of  Order  XXI  Rule  95  C.P.C.  “a  certificate  in
respect thereof  has been granted in Rule 94…..” “……  the  court  shall,  on
the application of the purchaser, order delivery to be made…..” we have  our
own doubts regarding the view taken by this Court  in  the  case  of  Pattam
Khader Khan's case (supra) “……..that there is nothing in Rule 95 to make  it
incumbent  for  the  purchaser  to  file  the  certificate   alongwith   the
application……” and “……..that the issuance of sale certificate is not a  sine
qua non of the application….”.  However in the facts  and  circumstances  of
the present case, we are not inclined to refer  the  question  to  a  larger
Bench - whether issuance of sale certificate is a sine qua non  or  not  for
filing the application under Order XXI Rule 95 C.P.C. and  the  question  is
left open.

12.   The High Court mainly considered the applicability  of  Section  15(1)
of the Limitation Act to arrive at the conclusion that the  application  for
delivery of possession was barred by limitation.  The  High  took  the  view
that application under Order XXI Rule 95 C.P.C.  does  not  attract  Section
15(1) of the Limitation Act and consequently the period during  which  order
of stay of execution granted by the revisional court cannot  be  taken  into
consideration. The High  Court  further  observed  that  the  court  auction
purchaser cannot seek to extend the limitation on the ground that  the  stay
granted by the High Court was in force  to  claim  the  benefit  of  Section
15(1) of the Limitation Act.

13.   As seen from  the  records  after  the  court  auction  sale  on  27th
October,  2001,  the  first   respondent-judgment-debtor   had   filed   two
applications, one for setting  aside  the  sale  under  Order  XXI  Rule  90
C.P.C.(E.A.No.315/2001)  and  another  for  appointment  of   an   Advocate-
Commissioner to assess the value of the property sold in the  court  auction
sale (E.A.No.77/2002) and  both  the  applications  were  dismissed  by  the
executing court.  As against the order passed in E.A. No.77/2002, in and  by
which, executing court declined to appoint Commissioner to assess the  value
of  the  property,  the  judgment-debtor   has   filed   the   revision   in
C.R.P.No.2829/2002 in which the High  Court  has  granted  stay  of  further
proceedings in the execution.  The said revision came  to  be  dismissed  on
9th July, 2003.  While  allowing  the  revision  filed  by  the  respondent-
judgment-debtor, the High  Court  observed  the  period  during  which  stay
granted by the High Court was in force i.e. from  17th  September,  2002  to
9th July, 2003  cannot  be  excluded  in  terms  of  Section  15(1)  of  the
Limitation Act.  The High Court took the view that application filed in  the
execution petition seeking delivery of possession does not  attract  Section
15(1) of the Limitation Act.

14.   The  learned  senior  counsel  appearing  for  the  first  respondent-
judgment-debtor submitted that the application filed under  Order  XXI  Rule
95 C.P.C. for delivery of possession of immovable property  by  a  purchaser
in a court auction sale cannot be construed as an application for  execution
so as to attract Section 15 (1)  of the Limitation Act and  the  High  Court
rightly held that Section 15(1) of the Limitation Act cannot be  applied  to
an application for delivery of possession filed  under  Order  XXI  Rule  95
C.P.C.

15.   Per  contra,  the  learned  counsel  for  the  appellant-decree-holder
submitted that as per Section 47 C.P.C. all questions  arising  between  the
parties to the suit in which the decree was passed or their  representatives
and relating to the execution,  discharge  or  satisfaction  of  the  decree
shall be determined by the court executing the decree and not by a  separate
suit.  It was further submitted that as per Clause (a) of Explanation II  of
Section 47 C.P.C., a purchaser of property at  a  sale  in  execution  of  a
decree shall be deemed to be a party to the suit  in  which  the  decree  is
passed.  Learned counsel  for  the  appellant  submitted  that  in  view  of
Section 47 C.P.C., a separate suit by the auction purchaser for recovery  of
the possession of the property  purchased  in  auction  in  execution  of  a
decree is barred.  It was therefore contended that by a conjoint reading  of
Order XXI Rule 95 C.P.C. read with Section 47 C.P.C., Section 15(1)  of  the
Limitation Act is to be made applicable even to an application  filed  under
Order XXI Rule 95  by  the  auction  purchaser  for  delivery  of  property.
Having regard to the narrow compass of the question involved in the  present
appeal, we are not inclined to go into the larger question of  applicability
of Section 15(1) of the Limitation Act to an application filed  under  Order
XXI Rule 95 C.P.C. and this question of law is also left open.

16.   As pointed out earlier, in terms of  Article  134  of  the  Limitation
Act, an application for delivery of possession by a purchaser  of  immovable
property at a sale in execution of a decree has to be filed within a  period
of one year from the date when the sale becomes absolute.   Considering  the
scope of the expression as to when the sale becomes absolute in the case  of
Chandra Mani Saha and Ors vs. Anarjan Bibi and others  AIR 1934  PC  134  it
was held as under:

“…In order to ascertain when such a sale as  is  referred  to  in  the  said
Article becomes absolute, reference must be  made  to  the  Civil  Procedure
Code, and the orders and rules contained in the  Sch.1 thereto, for that  is
the Code which contains the provisions relating to the  sale  of  immoveable
property in execution of decrees.  Order 21, Rules 82 to  96,  in  the  said
schedule are applicable to sales of immoveable property. Rules  89,  90  and
91 deal with applications to set aside a sale and Rule 92  (1)  provides  as
follows:

“Where no application is made under Rule 89, Rule 90, or Rule 91,  or  where
such application is made and disallowed,  the  Court  shall  make  an  order
confirming the sale and thereupon the sale shall become absolute.”

There is no doubt  that  the  above-mentioned  rule  is  applicable  to  the
present case ; for as already stated the judgment-debtors did apply  to  set
aside the sale, and the Subordinate Judge  disallowed  the  applications  on
15th April 1924, and on 22nd   April  1924,  he  confirmed  the  sales.  The
sales, therefore, became absolute on 22nd April 1924, at any rate so far  as
the Court of the Subordinate Judge was concerned. But  the  judgment-debtors
had a right of appeal under Order 43, Rule (1)(j) against the orders of  the
Subordinate Judge by which he disallowed their  applications  to  set  aside
the sales. This right of appeal the  judgment-debtors  exercised.  Upon  the
hearing of the appeals, the High Court,  by  reason  of  the  provisions  of
Section 107 (2) of the Code  had  the  same  powers  as  the  Court  of  the
Subordinate Judge. In  the  present  case,  the  High  Court  dismissed  the
appeals  and  on  such  dismissal  the  orders  of  the  Subordinate   Judge
confirming the sales became effective and  the  sales  became  absolute.  In
considering the meaning of the words in Article 180 of the  Limitation  Act,
it is useful to consider the  converse  case.  Take  a  case  in  which  the
Subordinate Judge allowed the application to set aside  the  sale;  in  that
case, of course, there could be no confirmation of the sale as  far  as  the
Subordinate Judge was concerned, as there would be no sale to be  confirmed.
But if, on appeal, the High Court allowed the appeal,  and   disallowed  the
application to set aside the sale,  the  High  Court  would  then  be  in  a
position to confirm the sale, and on such an order of  confirmation  by  the
High Court the sale would become absolute. Again, take a case in  which  the
Subordinate Judge disallowed the application to set aside  the  sale;  there
would then be confirmation of the sale by  the  Subordinate  Judge  and  the
sale would become absolute as far as his Court was concerned.  If  the  High
Court allowed an appeal, and set aside the sale,  there  would  then  be  no
sale, and, of course, no confirmation and no absolute sale.

Upon consideration of the sections and orders of the Code,  their  Lordships
are of opinion that in construing the meaning of the words  "when  the  sale
becomes absolute" in Article 180, the Limitation Act,  regard  must  be  had
not only to the provisions of Order 21, Rule 92(1), of the schedule  to  the
Civil Procedure Code, but also to the other material sections and orders  of
the Code, including those which relate to appeals  from  orders  made  under
Order 21, Rule 92(1). The result is that where there is an  appeal  from  an
order of the Subordinate Judge, disallowing the  application  to  set  aside
the sale, the sale will not become absolute within the  meaning  of  Article
180 of the Limitation Act, until the disposal of  the  appeal,  even  though
the Subordinate Judge may have confirmed the sale, as he was  bound  to  do,
when he decided to disallow the above-mentioned  application.”  [Underlining
added]

The same view was reiterated in the case of Sri Ranga Nilayan  Rama  Krishna
Rao vs. Kandokori Chellayamma  AIR 1953 SC 425.

17.   Considering the facts of the present case in the light  of  the  above
principles, in our view, the sale could not have become  absolute  till  the
proceedings in the revision in C.R.P.No.2829/2002 was over and the  revision
was disposed of.  The judgment-debtor, as discussed earlier, had  filed  two
applications E.A.No.315/2001- (i) to set aside the sale  alleging  that  the
property was sold for a lower price as a result of which substantial  injury
was caused to him and  (ii)  another  application  in  E.A.  No.77/2002-  an
application for appointing Advocate-Commissioner to assess the value of  the
property. As against the  order  dismissing  E.A.No.77/2002,  the  judgment-
debtor has filed the revision in C.R.P.No.2829/2002.  So long  as  the  said
revision was pending, the court auction sale was  yet  to  become  absolute.
For the sake of arguments, assuming that  the  said  revision  was  allowed,
then in that case the court auction sale would have been set  aside  on  the
ground that the property was sold for a lesser price.  Therefore,  till  the
revision in C.R.P. No. 2829 of 2002 was  disposed  of  in  one  way  or  the
other, the sale was yet to become absolute.  Be it  noted  that  in  Article
134 of the Limitation Act,  the  legislature  has  consciously  adopted  the
expression “when the sale becomes  absolute”  and  not  when  the  sale  was
confirmed.  As  against  the  order  dismissing  E.A  No.77/2002  since  the
revision was preferred by the  judgment-debtor  and  the  same  came  to  be
disposed of on 9th July, 2003 the sale became absolute  only  on  9th  July,
2003.  The application filed under Order XXI Rule 95 C.P.C on  30th  August,
2003 was well within the period of limitation.  In our view, the High  Court
was not right in holding that the application under Order XXI Rule 95  C.P.C
was barred by limitation and the impugned order cannot be sustained.

18.   In the result, the impugned order of the High  Court  in  C.R.P.No.894
of 2005 dated 2nd January, 2006 is set aside.  This appeal is allowed.   The
Executing Court is directed to  restore  E.A.No.297/2003  in  O.S.No.57/1985
and to dispose of the same in accordance with law.  No costs.


                                                   …….....................J.
                                                              [R.K. AGRAWAL]


                                                 .….......................J.
                                                               [R.BANUMATHI]
New Delhi;
January 11, 2017.

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