Whether court can suo moto convert suit for possession of property purchased in court auction into application U/O 21, Rule 95 of CPC?

In the case of K. R. Lakshminarayana Rao Vs. New Premier Chemical Industries, (2005)9 S.C.C. 354, the plaintiff/decree holder himself purchased the property in the year 1972. Auction sale was confirmed in the year 1973. Sale certificate was issued in favour of plaintiff/respondent on 28.11.1980. The respondent did not however take any step to obtain delivery of possession of the said property within a period of one year in terms of Order 21, Rule 95 of the C.P.C.. In the year 1998, the plaintiff-respondent filed a suit praying for declaration of title and possession of the suit property, which was dismissed by the Trial Court. It is observed in para 8 that a bare perusal of provisions of Order 21, Rule 95 of C.P.C. would leave no manner of doubt and in particular having regard to the amendments carried in C.P.C. by reason of the C.P.C. Amendment Act, 1976 that the steps for obtaining delivery of property in occupancy of the judgment-debtor is required to be taken by the auction-purchaser in terms of Order 21, Rule 95, C.P.C. and, thus a separate suit to enforce such a right would, therefore, be not maintainable. In para 9 of the said case it is observed that application under Order 21, Rule 95 must be filed within the prescribed period of limitation as provided for under Article 134 of the Limitation Act, 1963. After referring to the cases of Kailash Shankar (Supra), Harnanadrai (Supra) etc. it is observed that High Court committed error in holding that even if suit was not maintainable, the Court has ample power to treat the plaint to be application filed under Order 21, Rule 95 of the C.P.C.. It was held that this cannot be done since the suit was not filed within one year. So, the judgment in the case of K.R. Lakshminarayanaya Rao (Supra) clearly shows that separate suit is not tenable. 

22. So, the above discussion clearly shows that separate suit is not tenable. Since suit was not filed within one year after sale becoming absolute, it could not be treated as application under Order 22, Rule 95 of the C.P.C.. Mainly relying on the ratio laid down in the case of K. R. Lakshminarayanaya Rao (Supra), in which property was put on auction and sold in 1972, the auction sale was confirmed in the year 1973, and the suit was filed in 1998, I hold that the present appeal must be allowed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.R. BORKAR, J.

Baburao Vishwanath Dighe Vs. Kisan Bhivaji Sanap

Second Appeal No.328 of 1990

24th November, 2009

Citation:  2010(1) ALL MR 756

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When application under O 21 R 95 of CPC will not be barred by limitation?

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.

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