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C.A. No.4204 of 2007

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 Page No. 1 of 12

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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

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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

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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:-

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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

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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

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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.

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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

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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

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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]

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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,

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2003.  The application filed under Order XXI Rule 95 C.P.C on 30 th 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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