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 Vs. M.S.M. HANEEFA
Dated:January 11, 2017.
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
2
nd 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
limitation
Time from which
period begins to run
134 For delivery of possession by a
purchaser of immovable
property at a sale in execution
of a decree
One year When the sale
becomes absolute.
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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