Patna High Court
Bishun Prasad vs The Central Bank Of India And Ors. on 10 November, 1978
Equivalent citations: AIR1980PAT22, AIR 1980 PATNA 22, 1979 BLJR 439, 1979 BBCJ 253, (1979) BLJ 409
JUDGMENT S. Ali Ahmad, J.
1. This appeal has been filed by the judgment-debtor against an order passed against him on a petition which was labelled under Section 47 of the Civil P.C. The stamp reporter in his report has said that orders passed on an application under Section 47 of the Civil P.C. are no longer appealable and as such no appeal lies against the impugned order. Mr. Chatterjee learned Counsel for the appellant accepting the stamp report prays that the appeal may be converted into a civil revision. Mr. Agrawal learned Counsel for the opposite party has no objection, if this appeal is converted into a civil revision application. I think the prayer of Mr. Chatterjee to convert the appeal into a civil revision application is justified. The appeal is, accordingly, converted into a civil revision application and is disposed of as such.
2. The Central Bank of India (opposite party No. 1) obtained a money decree against the petitioner. Since the petitioner (judgment-debtor) did not pay the decretal amount, the decree was put under execution and the house in question was put on auction sale. It appears that one Faudi Sah filed an application under Order XXI Rule 58 of the Civil P.C. claiming the house in his own right on the basis of a purchase from the judgment-debtor. The proceeding under Order XXI, Rule 58 of the Civil P.C. was decided against Faudi Sah in which it was held that the transaction on the basis of which he claimed the house was a fictitious one and that he was set up by the judgment-debtor. Faudi Sah thereafter filed a suit under Order XXI Rule 63 of the Civil P.C. In the meantime the house was auction purchased by the decree-holder (opposite party No. 1) on 12th December 1966 and the sale was confirmed on 3rd Jan. 1967. Sale certificate, it appears, was prepared on 1st July 1967. The Title Suit (No. 36 of 1965 under Order XXI Rule 63 C.P.C. filed by Faudi Sah was dismissed on 30th April 1973. Thereafter the Bank (opposite party No. 1) filed an application in the execution case on 18-3-1974 praying for delivery of possession over the house purchased by it in the auction sale held on 12-12-1966. The petitioners filed an application labelling it under Section 47, C.P.C. and praying that the application for delivery of possession of the house be rejected as the application filed by the decree-holder on 18-3-1974 was barred by limitation. The Additional Subordinate Judge, V. Patna, was of the view that the application was not barred by limitation and that the question of limitation had already been decided in favour of the decree-holder by an order dated 12-10-1974. The objection, therefore, by the judgment-debtor was rejected and thereafter this civil revision application.
3. Mr. R.S. Chatterjee learned Counsel for the petitioner submitted that the court below was wrong in holding that the application filed on 18-3-1974 for delivery of possession was within time, Learned Counsel in that connection has first referred to Article 134 of the Limitation Act, 1963. This Article provides limitation of one year from the date the sale becomes absolute for filing application for delivery of possession by a purchaser at a sale in execution of a decree. Learned Counsel also referred to Order XXI Rule 92 of the Civil P.C. which provides that 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. Learned Counsel on the basis of these two provisions contended that the sale became absolute on 23rd January 1967, and the period of limitation as provided under Article 134 of the Limitation Act expired on 23rd January 1968, According to him, therefore, the application for delivery of possession filed on 18-3-1974 was barred by limitation.
4. Mr. Agrawal, on the other hand submitted that while construing the meaning of the words, "when the sale becomes absolute" in Article 134, regard must be had not only to the provisions of Order XXI Rule 92 of the Civil P.C., but also to the other material Sections and Orders of the Code. It is, therefore, submitted that so long as the title suit under Order XXI Rule 63 of the Civil P.C. was not decided in favour of the decree-holder, the sale had not become absolute within the meaning of Article 134 of the Limitation Act. To support his submissions, learned Counsel has referred to a decision in the case of Chandra Mani Saha v. Anarjan Bibi (AIR 1934 PC 134). The facts of that case are very much similiar to this case and their Lordships of the Privy Council observed that in construing the meaning of the words "when the sale becomes absolute" in Article 180 regard must be had not only to the provisions of Order 21 Rule 92 (1) but also to other material sections and orders of the Code including those which relate to appeals from orders made under Order 21, Rule 92 (1). It was further observed that 'where there is an appeal from an order of the Judge disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 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'. I think this Privy Council decision fully applies to the present case.
5. As has been seen above, title suit was decided on 30th April 1973, but till then the rights were not finally adjudicated and it could not be predicated what exactly the purchaser will be entitled to get by virtue of his purchase. The sale, therefore, was not absolute at least till 30th April 1973, when for the first time it was finally determined that the appellant has purchased good title in the auction sale. The suit under Order XXI Rule 63 is a suit under the Civil P.C. and as such I am of the view that the sale within the meaning of Article 134 of the Limitation Act becomes absolute after the suit under Order XXI Rule 63 C.P.C. was finally disposed of. Since in this case the application for delivery of possession was filed within one year from the date of the disposal of the title suit, the same is certainly within the period prescribed by Article 134 of the Limitation Act.
6. Mr. R. S. Chatterji on the assumption that the sale became absolute on 23rd January 1967, urged that the delay in filing the application for delivery of possession could not be condoned under Section 5 of the Limitation Act. According to him, the period of one year could be extended only under Section 15 of the Limitation Act in proper cases, but on the facts of this case, according to him, Section 15 of the Limitation Act was not applicable. Learned Counsel to support his stand has referred to certain decisions. It is not necessary, in my opinion, to decide the point as I have held that the application for delivery of possession was filed within one year from the date when the sale became absolute. The question, therefore, as to whether the time could be extended or not under Section 15 of the Limitation Act does not arise.
7. I, therefore, see no merit in the appeal, which is dismissed with costs.