Kerala High Court
Haneefa vs United Finance Corporation on 2 January, 2006
Equivalent citations: AIR2006KER149, 2006(1)KLT416, AIR 2006 KERALA 149, 2006 (4) ALL LJ NOC 712, 2006 (2) AJHAR (NOC) 613 (KER), 2006 (3) AKAR (NOC) 400 (KER), 2006 A I H C (NOC) 208 (KER), (2006) ILR(KER) 1 KER 422, (2006) 1 KER LT 416, (2006) 2 ICC 559, (2006) 4 CURCC 395, (2006) 1 KER LJ 211
Author: V. Ramkumar
Bench: V. Ramkumar
ORDER V. Ramkumar, J.
1. The judgment-debtor in E.P.193/95 in O.S.57/1985 on the file of the Subordinate Judge's Court, Neyyattinkara, is the revision petitioner. The said suit was one for realisation of money. The suit was decreed and in execution of the decree an item of property belonging to the revision petitioner/judgment-debtor was brought to sale and purchased by the plaintiff/decree-holder. E.A. 297/2003 was filed by the plaintiff/decree-holder/auctjon purchaser for delivery of the property purchased by him. The revision petitioner resisted the said application by filing objections to the same. Overruling the objections the court below, as per the impugned order dated 12.8.2005 allowed the application for delivery filed by the auction purchaser. It is the said order which is assailed in this revision petition.
2. I heard Advocate Sri. Shinod G.P., the learned counsel appearing for the revision petitioner as well as the learned counsel appearing for the decree-holder/auction purchaser.
3. Adv.Sri John Joseph Vettikkad appearing for the decree-holder/auction purchaser made the following submissions before me in support of the impugned order:-
The contention of the judgment-debtor/revision petitioner that E.A.297/P003 filed by the decree-holder for delivery of the property is barred by limitation is untenable. Under Article 134 of the Limitation Act, 1963 the period of limitation runs only from the date when the sale becomes absolute. The sale certificate in this case was actually issued on 17. 3.2003. It is only when the sale becomes absolute and sale certificate is issued to the court-auction purchaser under Order XXI Rule 94 C.P.C. can he apply for delivery under Order XXI Rule 95 C.P.C. In other words, the sale becomes absolute within the meaning of Order XXI Rule 95 C.P.C., only after the issue of the sale certificate (vide P Kuppan v. Jayarama Chetty and Anr. ). If so, the application for delivery filed within one year of the issue of sale certificate, was well within time and the contention of the revision petitioner that it was barred by limitation is unsustainable. A court 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 acquires the attribute of finality or becomes absolute only on the termination of the proceedings started to set aside the court sale or to set aside the order confirming the sale (vide Narayana Pillai Krishna Pillai v. Damodara Pillai Velayudha Filial ). In the instant case, even though the order confirming the sale was passed on 1.6.2002, the judgment-debtor/revision petitioner had filed C.R.P. 2829/02 before the High Court on 17.9.2002 against the dismissal of his application for issuance of a commission filed as E.A.77/2000. Ground No. C in the said C.R.P. was that the sale was liable to be set aside. In the decision reported in 1969 (II) M.L.J. 163 Badrabahu Nainar v. Devendra Nainar it has been held that the question as to whether a sale has become absolute or not within the meaning of Article 134 of the Limitation Act depends upon the fact whether any legal proceedings intimately connected with the sale and having a nexus to the original proceedings relating to the sale is still pending so as to create a cloud of doubt about its finality and if there is any contemporaneous proceedings taken by any party to the suit questioning the same with a view to postpone it or avoid it and if there is any perceptible connection between such pending proceedings and the sale itself, then it can reasonably be presumed that the finality in the court sale has not yet reached. In the aforesaid Civil Revision Petition filed by the judgment-debtor he had filed C.M.P.709/2002 in which all further proceedings in execution of the decree had been stayed by the High Court from 17.9.2002 till 9.7.2003 when the C.R.P. was ultimately dismissed. During the aforesaid period of stay, the auction purchaser was prevented from filing a petition for delivery in execution of the decree. E.A. No. 297/2003 was filed on 1.9.2003 after the disposal of the C.R.P. Hence by virtue of Section 15(1) of the Limitation Act, 1963, the period during which the decree-holder/auction purchaser was disabled from executing the decree should be excluded from the period of limitation. If so, E.A.297/03 was well within the limitation. The dispute regarding the identity of the property described in the sale certificate is also without any merit. The property in question was purchased by the judgment-debtor as per sale deed No. 2347/1977 of S.R.O., Kollankode. The property which is covered by the sale certificate is the property described in the B schedule to the aforesaid sale deed produced in this revision as Annexure E in the counter affidavit filed by the respondent/decree-holder to the stay petition, namely, LA. 2595/2005. It is the very same property which has been described in the sale certificate. Hence none of the objections raised by the rev i si on petitioner/ judgment-debtor against E.A. No. 297/2003 is sustainable. His only attempt is to somehow or other protract the execution proceedings to the extreme prejudice and hardship of the decree-holder/auction-purchaser.
4. I am afraid that I cannot agree with the above submissions.
5. The facts of the case culminating in the impugned order can be summarised as follows:-
The suit namely O.S.57/1985 on the file of the Subordinate Judge's Court, Neyyattinkara was one instituted by the respondent herein which is a financial institution, for realisation of a sum of Rs. 2 lakhs with interest. The suit was decreed on 16,1.1988 for a sum of Rs. 2,72,1007- and in execution of the decree, an item of immovable property belonging to the revision petitioner/judgment-debtor was brought to sale. The said property admeasuring 1.50 acres of land in Parassala village of Parasuvakkal desom of Neyyattinkara taluk was purchased by the plaintiff/decree-holder on 27.10.2001, for a sum of Rs. 4,70,350/-. The sale was confirmed on 1.6.2002. Thereafter, the sale certificate bearing the date 1-6-2002 was issued to the auction purchaser on 17.3.2003. In the meanwhile, the revision petitioner/judgment-debtor had filed CRP No. 2829/02 before this court challenging Annexure C order dt. 1.6.2002 passed by the executing court in E.A.77/02 rejecting the revision petitioner's application for appointment of an advocate commission to assess the value of the property sold in the court auction sale. That C.R.P. was eventually dismissed on 9.7.2003. During the pendency of the said G.R.P., this court had stayed all proceedings in execution of the decree. The said order of stay was passed on 17.9.2002 and was in force till 9.7.03 on which day the C.R.P. itself was dismissed. On 30.8.2003 the plaintiff/decree-holder/ auction purchaser filed E.A.297/2003 under Order XXI Rule 95 C.P.C. for delivery of possession of the property scheduled to the sale certificate. The revision petitioner/ judgment-debtor resisted the said application by filing objections to the same. Overruling his objections the court below as per order dt. 12.8.2005 impugned in this revision allowed the application for delivery filed by the auction purchaser.
6. There was divergence of judicial opinion between various High Courts as to whether an application by an auction purchaser under Order XXI Rule 95 C.P.C. for delivery of possession of the property purchased by him could be treated as an application for execution of the decree. Some High Courts had taken the view that such an application could be treated as an application for execution governed by Article 136 of the Limitation Act. Other High Courts had taken the view that it was only an application in execution proceedings governed by Article 134 of the Limitation Act. The matter has finally been settled by,the Apex Court in the decision in Ganpat Singh v. Kailash Shankar wherein it has been authoritatively laid down that an application under Order XXI Rule 95 C.P.C. by the auction purchaser for delivery of possession of property would be governed by Article 134 and not Article 136 of the Limitation Act. If so, the period of limitation for such an application under Article 134 of the Limitation Act is 1 year from the date when the sale becomes absolute. Under Order XXI Rule 92(1) CPC a sale becomes absolute upon the court making of an order confirming the sale, unless there is an application to set aside the sale under Order XXI Rules 89,90 or 91 of C.P.C. Where there is no such application to set aside the sale, Order XXI Rules 92 obliges the court to pass an order confirming the sale and thereupon the sale shall become absolute. But where there is an application for setting aside the sale and such application is eventually rejected, then the passing of an order confirming the sale is postponed till the rejection of the application to set aside the sale. This rejection may take place either in the executing court or in the appellate court to which the matter might be carried. Where the. sale of immovable property has become absolute consequent on the passing of an order confirming the sale under Order XXI Rule 92 C.P.C., then Order XXI Rule 94 C.P.C. enjoins that the court shall grant a sale certificate to the purchaser and such certificate shall bear the date on which the sale became absolute. Thus, even if a sale certificate is actually issued to the purchaser on a date subsequent to the date on which the order confirming the sale is passed under Order XXI Rule 92(1) C.P.C., by virtue of the mandate under Order XXII Rule 94 C.P.C., the sale certificate, issued subsequently, shall bear the date on which the sale became absolute which will ordinarily be the date on which the sale was confirmed. Then, by virtue of the fiction created by Section 65 C.P.C., the vesting of the property in the court auction purchaser relates back to the date of sale and not to the date when the sale became absolute.
7. In a case where the court auction sale is challenged and an application to set aside the sale is filed either under R.89 or Rule 90 or Rule 91 of Order XXI C.P.C. or where the court auction sale has been effected pending a claim or objection to an attachment, then it may not be possible for the court to pass an order confirming the sale immediately in view of Order XXI Rule 92 C.P.C. Such an order will have to await the final result of the application to set aside the sale or the claim or objection to the attachment. Even in a case where an application to set aside the sale or a claim or objection to attachment is either allowed or rejected by the executing court, the matter may not end there. Such an order which is appealable under Order 43 C.P.C. might be challenged by the aggrieved party by filing an appeal. In those eases, the one year period of limitation under Article 134 of the Limitation Act would start running only from the date of the appellate order where such appeal is dismissed, (vide Sri Ranga Nilayam Ramakrishna Rao v. Kandokarl Chellayamma AIR 1953 SC 425, Maganlal v. Jaiswal Industries, Neemach and Ouseph Joseph v. Thressia 1988 (2) KLT 854). But even in cases where the order of rejection passed by the executing court is taken up in appeal, the executing court, immediately after rejecting the application for setting aside the sale or the claim or objection made to the attachment, may pass an order under Order XXI R. 92(1) C.P.C. confirming the sale. The order of confirmation of sale in such a case would be an inchoate order which may not make the sale absolute for the purpose of limitation. The position was succinctly stated by the Madras High Court in S.V. Ramalingam v. K.KRajagopalan 1975 (2) MLJ 494 as foiibws:-
The confirrnation of sale subsequent to the dismissal of a petitobn underO.21, R. 90 cannot, in reality, alter the situation when the mortgagor-judgment-debtor has preferred within time an appeal against the dismissal of his petition under Order 21, R. 90. Though the confirmation of the sale does take the auction-purchaser a step further than before the confirmation of the sale, the confirmation by itself is in one sense inchoate. The confirmation gives the sale only viability but does not render the sale an indefeasible one, till such time as the appeal preferred by the mortgagor against the validity of the sale remains undisposed. In that sense, the confirmation effected by the executing Court may become final as far as the executing Court is concerned, but it certainly does not stamp the transaction with irrevocable finality when alone the rights of parties get crystallised beyond retracement. Consequently, the appeal preferred by the judgment-debtor has the effect of rendering a sale and its confirmation fluidal and nebulous.
The above statement of the law received the stamp of approval from the Apex Court in Maganlal v. Jaiswal Industries, Neemach . In this case the revision petitioner/judgment-debtor did not file any application for setting aside the court auction sale and therefore there was no question of the executing court postponing the order confirming the sale to a future date so as to correspondingly postpone the sale becoming absolute. Hence the decisions reported in Narayana Pillai Krishna Pillai v. Damodaran Pillai Velayudhan Pillai and Badrabahu Nainar and Ors. v. Devendra Nainar and Ors. 1969 (2) MLJ 163 relied on by the learned counsel for the respondent/auction purchaser have no application to the present case. It is true that the revision petitioner/judgment-debtor had filed CRP No. 2829/2002 before this court challenging Annexure C order dt. 1.6.2002 passed by the executing court in E.A. 77/2002. As per E. A.77/02 the judgment-debtor had sought the appointment of an Advocate commission to assess the value of the property sold in court auction and that application was filed much before the filing of the petition (E.A.297/03) by the decree-holder under Order XXI Rule 95 C.P.C. It was against the dismissal of the said application that he filed C.R.P. 2829/02. No doubt, this court had as per the order passed in C.M.P.709/2002 in the above C.R.P. stayed all further proceedings in execution of the decree from 17.9.2002 till 9.7.2003. But, admittedly, there was no proceedings for setting aside the court auction sale filed or pending after 1.6.2002 on which day the executing court had passed the order confirming the sale. Then the further question which may arise would be whether the order of stay by this court in the above C.R.P. attracted Section 15(1) of the Limitation Act precluding the respondent/ decree-holder/auction purchaser from filing an application for delivery of possession under Order XXI Rule 95 C.P.C. Section 15(1) of the Limitation Act reads as follows:-
1. In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjectival or procedural law and not a substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not apply or could be said to apply by necessary implication. It would not, therefore, be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions (vide A.S.K.Krishnappa v. S.V.V. Somiah ).
8. E.A,297/03 was admittedly an application by the respondent/auction purchaser for delivery of the property which was outstanding in the possession of the judgment-debtor. By no stretch of imagination could that application be treated as one for execution of a decree within the meaning of Section 15( 1) of the Limitation Act. The duration of the period of an order staying the execution of a decree can be excluded from computation for the purpose of limitation by resort to Section 15(1) of the Limitation Act only in the case of an application for execution of a decree and not for any other application. An application by the auction purchaser for delivery of possession may be an application in a proceeding for execution, but it cannot be treated as an application for execution (vide Jateendra Chandra v. Rebateemohan Das AIR 1935 Calcutta 333 and Govinda Rao Sopan Rao Kadam v. Gopinathan ). Thus, the application for delivery of possession does not attract Section 15(1) of the Limitation Act and consequently the period of any order of stay of execution granted by the revisional court where an order declining to issue a commission on an earlier application (E.A.77/2002) was under challenge is not liable to be excluded from limitation. Where Section 15(1) of the Limitation Act cannot be applied, the general principle behind the said section also cannot be extended by analogy of reference to hold that the period of limitation stood suspended during the operation of the order of stay granted by this court preventing the decree-holder from prosecuting his remedy by way of delivery of possession (videA.S.K. Krishnappa 's case (supra). Even otherwise, Section 15(1) of the Limitation Act did not prohibit the purchaser from filing a petition for delivery of possession. In Narayana pilial Gopala pilial v. Chothikunjan 1954 KLT 231) it was held as follows:-
S.15 of the Limitation Act covers only cases where there is an absolute stay of the suit and cannot apply to cases where in spite of the prohibitory order, a suit could be filed. In the present case, the execution of the decree alone had been stayed by the appellate court. There was no order prohibiting the purchaser from filing a suit for possession. Therefore, for a suit filed for possession under Article 138, the period during which a collateral proceeding had been stayed, could not be excluded.
9. Equally misconceived is the argument based on the decision '(supra) A learned Single Judge of the Madras High Court in the above decision had taken the view that a reading of O. xxxI Rule 95 C.P.C. indicates that it is only after the issue of sale certificate is the court auction purchaser entitled to ask for delivery. With due respect I find myself unable to agree with the above reasoning. In State Bank of Travancore v. Sankaran 1991 (1) KLT 121 a learned Single Judge of this Court had held that the time under Article 134 of. the Limitation Act begins to run from the date when the sale becomes absolute and not from the date on which the sale certificate was granted. It was inter alia observed that the conditions envisaged under Order XXI Rule 95 need be satisfied only to enable the court to pass an order, for delivery of the property and that they are not conditions to be satisfied before an application for delivery of property could be filed. It was further noticed that if the grant of a sale certificate under Order XXII R,94 was a pre-condition for filing an application for delivery, then the wording in the third column to Article 134 of the Limitation Act would have been different. This reasoning is more consistent with the statutory scheme under the Code of Civil Procedure and also the decision of the Apex Court in Pattom Khader Khan v. Pattom Sardar Khan (1996) 5 SCC 48 whrein it has been held that the issue of a sale certificate is not a 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. and by virtue of the thrust of Section 65 CPC, the property vests in the court auction purchaser from the date of sale and the sale certificate issued subsequently does not create any title but is merely an evidence of title. It was further held that the court auction purchaser cannot seek to extend the limitation on the ground that the sale certificate has not been issued and that the sale certificate could always be supplied later to the court before passing the order for delivery.
10. The result of the foregoing discussion is that E. A.297/2003 filed by the decree-holder/auction purchaser on 30.8.2003 for delivery of possession under Order XXI Rule 95 C.P.C. was filed beyond the prescribed period of one year from 1.6.2002 which is the date on which the sale was confirmed and it became absolute. Since Section 5 of the Limitation Act has no application to a proceeding in execution, the said delay cannot be condoned. The fact that the sale certificate was, in fact, issued only on 17.3.2003 is of no avail to the decree-holder to seek extension of limitation in view of the ratio decided in Pattom Khader Khan's case (supra). The duration of the stay of execution granted in C.R.P.2829/2002 also cannot be taken advantage of by the decree-holder to exclude the period of limitation by resort to Section 15(1) of the Limitation Act which has no application to the facts of the present case. Thus, E.A.297/2003 was liable to be dismissed by the executing court in view of the mandate under Section 3 of the Limitation Act. The impugned order cannot, therefore, be sustained and is accordingly set aside. E.A.297/03 filed by the decree-holder before the Court below under Order XXI Rule 95 C.P.C. will stand dismissed.
Before parting with this case, I wish to clarify that the entire amount which the revision petitioner/judgment-debtor has paid or deposited towards the decree debt, can be appropriated by the decree-holder/auction purchaser in case it elects to adopt that course. This C.R.P. is thus allowed as above. However, in the circumstances of the case the parties shall bear their respective costs in this revision.