Kerala High Court
N.G. Aravindakshan Nair vs Binoy Kurian on 20 December, 2016
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 24TH DAY OF MARCH 2017/3RD CHAITHRA, 1939
RSA.No.174 of 2017 ()
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AGAINST THE JUDGMENT AND DECREE IN AS NO. 249/2012 of ADDL.
DISTRICT JUDGE II (SPECIAL) KOTTAYAM, DATED 20-12-2016.
AGAINST THE JUDGMENT AND DECREE IN OS 49/2011 of MUNSIFF
COURT, CHANGANACHERRY, DATED 30-07-2012.
APPELLANTS/APPELLANTS/DEFENDANTS:
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1. N.G. ARAVINDAKSHAN NAIR,
S/O. GOPALA PILLAI,
RESIDING AT KOMALAVILASATH HOUSE,
EZHUMATTUR VILLAGE, THELLIYUR KARA.
2. RAVEENDRAN NAIR,
ASHOK BHAVAN HOUSE,
PERUNNA.P.O., CHANGANACHERRY.
BY ADV. SRI.M.J.THOMAS
RESPONDENT/RESPONDENT/PLAINTIFF:
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BINOY KURIAN,
S/O T.C KURIAN,
THOPPIL HOUSE,
CHETHIPUZHA VILLAGE, CHANGANACHERRY.
BY ADVS. SRI.MATHEW JOHN
SRI. DOMSON J. VATTAKUZHY
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 24-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sf
"C.R."
A. HARIPRASAD, J.
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RSA No. 174 of 2017
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Dated this the 24th day of March 2017
JUDGMENT
Defendants in a suit for declaration of title to the plaint property and recovery of possession are the appellants.
2. Relevant pleadings, in short, are as follows:-
Plaintiff/respondent is title holder of the plaint schedule property by virtue of Ext. A1 sale certificate issued pursuant to the auction sale conducted on 30-03-2011 in EP 74/1999 in OS No.540/1997 before the Court of Munsiff, Changanassery. The suit was for realization of money. First appellant herein was the sole defendant in the suit. Pursuant to the money decree passed against the first appellant, his property was attached and sold in court auction and the plaintiff/respondent purchased it. Plaintiff could not take delivery of the property within a period of one year stipulated under Article 134 of the Limitation Act 1963, because he was abroad at that time. After issuance of the sale certificate, the first appellant(sole defendant in OS No.540 of 1997), inducted the 2nd defendant into possession of the property and therefore R.S.A. No.174 /2017 2 the plaintiff contended that the 2nd defendant is in unlawful possession. Hence he sought for a declaration of his title and recovery of possession.
3. The appellants/defendants filed a written statement contending inter alia that the plaintiff has no title to the property and he is not entitled to possess the same. In fact, the 2nd defendant, after paying valuable consideration, obtained possession of the property. It is further averred in the written statement that both the appellants are jointly possessing the property. The suit is liable to be dismissed.
4. The trial court, after considering the rival contentions and evidence on both sides, decreed the suit. The appellants took up the matter before the lower appellate court. That court, after re-appreciating the evidence, concurred with the trial court and dismissed the appeal.
5. Heard the learned counsel for the appellants and the respondent.
6. The substantial questions of law framed in the Second Appeal are as follows:-
1. Whether a suit is maintainable for declaration of title and recovery of possession when the decree R.S.A. No.174 /2017 3 holder has not applied for delivery of possession as provided under Order 21 Rule 95 of C.P.C. on confirmation of sale in a court auction?
2. Whether the suit is barred under Article 134 of the Limitation Act?
7. Learned counsel for the appellant contended that the trial court and lower appellate court committed a legal error in referring to pleadings of the defendant alone to determine the relevant period of limitation. The trial court found that going by the contentions of the defendants, Article 65(c) of the Limitation Act applies and therefore the suit instituted beyond one year prescribed under Article 134 of the Limitation Act, but within 12 years prescribed in Article 65 of the Limitation Act, is maintainable. Learned counsel for the appellants contended that this view of the courts below is incorrect. According to him, the courts below should have considered the plaint averments to determine the period of limitation. It is true that primarily the plaint averments should be taken into account for determining the question of limitation in a suit. However, in some cases, the contentions in the written statement may also become relevant depending on the facts and circumstances. However, at any rate,the plaint averments cannot be disregarded for deciding the R.S.A. No.174 /2017 4 question of limitation. Going by the plaint averments, it can be seen that the property was not taken delivery of pursuant to the sale certificate as provided in Order 21 Rule 95 C.P.C. The period prescribed for taking delivery of property pursuant to an auction sale as per Article 134 of Limitation Act is one year, when the sale becomes absolute. Admittedly, in this case, the suit for declaration and recovery of possession of property on the strength of title was filed beyond one year. Another admitted fact is that it was filed within 12 years prescribed under Article 65 of the Limitation Act.
8. In the above factual matrix, the learned counsel for the appellants contended that the suit is hit by Sec.12 and Sec.47 of the CPC.
Sec. 12 reads as follows:-
"Bar to further suit - Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies."
Sec. 47 reads as follows:-
"Questions to be determined by the Court executing decree - (1) All questions arising between R.S.A. No.174 /2017 5 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.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
[Explanation I-For the purpose of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II(a)-For the purpose of this section, 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; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."]
9. On a perusal of Explanation II (b), it will be clear that a question relating to delivery of possession of property involved in an auction sale shall be deemed to be a question relating to R.S.A. No.174 /2017 6 the execution, discharge or satisfaction of the decree. Provisions in Order 21 Rule 95 CPC read conjointly with Sec.47 CPC will show that delivery of property in the occupancy of a judgment debtor should be taken in the execution proceedings itself. The principle in Sec.12 of CPC is also clear that where the plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such a cause of action in any Court to which the Code applies. It is therefore contended by the learned counsel for the appellants that the suit filed by the plaintiff for a declaration and consequential recovery of possession is not maintainable.
10. Argument advanced by the learned counsel is really attractive. True, Section 12 and Explanation II (b) to Section 47 CPC, read along with Order 21 Rule 95 CPC, when clubbed with the legal principles in Article 134 of Limitation Act, would clearly make out that a person, who has not resorted to the procedure in Order 21 Rule 95 CPC may lose his right to recover property after the time prescribed in Article 134 of Limitation Act. On a theoretical plane, I may agree with this line of thinking. But this Court is powerless to accept the above argument because of the R.S.A. No.174 /2017 7 precedential principles.
11. I shall deal with the legal pronouncements touching this aspect. The Supreme Court in Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and others [1973 (2) SCC 467], considered the question whether, after an auction sale in execution of a decree, the decree holder-auction purchaser can move the executing court for delivery of vacant possession of an immovable property or whether he has to file a separate suit to get possession? Fact to be remembered is that this decision was pronounced by the Supreme Court before amendment of the CPC by Act 104/1976, which came into effect on 01-02-1977. The Supreme Court after considering the rival contentions and the relevant decisions, held as follows:-
"It is important to remember that after the decision of the Privy Council in Ganapthy's case (supra), there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing court and not by a separate suit." R.S.A. No.174 /2017 8
12. Learned counsel for the respondents contended that the said principle has no application to this case, both on facts and on law. According to him, subsequent pronouncements by the Supreme Court, after amendment of the CPC in 1976, made the position clear. Reliance is placed on Pattam Khader Khan Vs. Pattam Sardar Khan, [1996 (5) SCC 48], urged the following propositions of law.
"There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one-year limitation,now prescribed under Art. 134 of the Limitation Act, 1973, in substitution of a three-year period prescribed under Art.180 of the India Limitation Act of 1908, is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail of such quick remedy the law relegated him to the remedy of a suit for possession in a regular way."
13. Yet another decision relied on by the learned counsel is Balakrishnan Vs. Malayiyandi Konar [2006 (1) KLT 926 R.S.A. No.174 /2017 9 SC]. This is also a suit in which a money decree was passed against the defendant and his property was sought to be delivered under Order 21 Rule 95 CPC. Consequently a question was raised before the Supreme Court regarding applicability of Article 134 of the Limitation Act. In that context, the Supreme Court held as follows:-
"The limitation for the purpose of Art. 134 starts from the date of confirmation of sale. (See Ganpat Singh (dead) by Lrs. Kailash Shankar and Ors. ((1987)3 SCC 146). In Pattam Khader Khan V. Pattem Sardar Khan and Anr. ((1996) 5 SCC 48) this court held that it is not from the date when sale certificate is issued that the limitation starts running. The sale becomes absolute on conformation under O.XXI R.92 of the Code effectively passing title. It cannot be said to attain finality only when sale certificate is issued under O.XXI R.94. There can be variety of factors conceivable for which delay can be caused in issuing a sale certificate. The period of one year limitation now prescribed under Art. 180 of the Indian Limitation Act, 1908 is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask for the delivery of possession of the property purchased within that period from the date of the R.S.A. No.174 /2017 10 sale becoming absolute rather that from the date of issuance of the sale certificate. On his failure to avail such a quick remedy the law relegates him to the remedy of a regular suit for possession based on title, subject again to limitation."
14. In the light of these binding legal pronouncements, the question that arises for consideration is whether this Court can consider the above mentioned contentions regarding maintainability of the suit. The answer could only be in the negative. In Suganthi v. Jagadeeshan (AIR 2002 SC 681), the Supreme Court laid down the following proposition of law, of course in the context of a case under Section 138 of the Negotiable Instruments Act. I shall quote.
"It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Art. 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It R.S.A. No.174 /2017 11 was pointed out by this Court in Anil Kumar Neotia Vs. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court."
15. In yet another decision in South Central Railway Employees Co-operative Credit Society Employees Union v. B.Yashodabai and others ((2015) 2 SCC 727), a three Judge Bench of the Supreme Court observed thus:
" If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when CA NO. 4343 of 1988 was decided. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher R.S.A. No.174 /2017 12 court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India."
16. For the said reasons, the contentions raised by the appellants that the suit is barred under Article 134 of Limitation Act by virtue of the provisions in Sec.12 and Sec.47 CPC and also that in Order 21 Rule 95 CPC cannot be accepted by this Court and can be urged only before the apex Court.
17. Therefore I find that the substantial questions of law framed should be decided against the appellants.
18. Hence the appeal is worthy of dismissal only. Hence I do so.
Learned counsel for the appellants requested a reasonable time to vacate the property. Considering nature of the contentions, three months time is granted to the appellants to R.S.A. No.174 /2017 13 vacate the property on condition that they shall file an undertaking affidavit within four weeks from today stating that they will not raise any further contention and will vacate the property without any demur within the stipulated time. In the event of them not filing an undertaking affidavit within the stipulated time, the decree holder is permitted to proceed with the execution.
Sd/-
A. HARIPRASAD JUDGE /TRUE COPY/ P.A. TO JUDGE sf 01-04-17