Madras High Court
Vendanthipillai vs C.Kaja Mohideen on 9 August, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2016
CORAM
THE HONOURABLE Ms.JUSTICE R.MALA
S.A.(MD)No.360 of 2005
and
C.M.P.(MD)No.3161 of 2005 and 5773 of 2016
1.Vendanthipillai
2.Manickam
3.Surulivelu
4.G.Nagarathinam (died)
5.G.Amaravathi
6.Meenakshi
7.Chellam
8.Saroja
9.M.Senthil Raj
(9th appellant brought on record as LRs of the deceased 4th appellant vide
order dated 29.03.2012 made in M.P.(MD)No.1 to 3 of 2012)
... Defendants 2 to 9 / Respondents /
Appellants
Vs.
C.Kaja Mohideen
... Plaintiff / Appellant / Respondent
Prayer: The Second Appeal is filed under Section 100 of C.P.C. against the
judgment and decree dated 27.09.2004 made in A.S.No.83 of 2002 passed by the
Subordinate Judge, Periyakulam, modifying the judgment and decree in
O.S.No.647 of 1996 dated 27.02.2002 passed by the District Munsif,
Uthamapalayam.
!For Appellants : Mr.R.Suriya Narayanan
^For Respondent : Mr.R.Vijaya Kumar for
Mr.C.Mahadevan
:JUDGMENT
The Second Appeal is filed against the judgment and decree dated 27.09.2004 in A.S.No.83 of 2002 passed by the learned Subordinate Judge, Periyakulam, modifying the judgment and decree in O.S.No.647 of 1996 dated 27.02.2002 passed by the learned District Munsif, Uthamapalayam.
2.The defendants, who have lost the legal battle in the First Appellate Court, have come forward with this Second Appeal.
3.The respondent as a plaintiff, who is a court auction purchaser, filed a suit for recovery of possession on the basis of the sale certificate issued to him in E.P.No.100 of 1984 in O.S.No.158 of 1982. The defendants 2 to 4, who are the sons of the 1st defendant, are the judgment debtor in O.S.No.158 of 1982. Since the plaintiff had not filed any application under Order 41 Rule 95 CPC for delivery, he had filed a separate suit for recovery of possession and mense profit.
4.The defendants filed a written statement and contested the suit stating that they are not aware of the decree and judgment and the value of the property was Rs.20,350/-, which is a very meager amount. He ought to have filed an application in the executing court for delivery. Therefore, the suit itself is not maintainable.
5.The Trial Court after framing necessary issues, dismissed the suit holding that the plaintiff ought to have filed an execution application under Order 21 Rule 95 CPC and hence, the suit is barred under Section 47 of CPC. Hence he is not entitled for any relief. Against which, the plaintiff preferred an appeal for delivery of possession. The appeal has been allowed holding that the suit is maintainable as per Article 136 of Limitation Act. The suit is filed well within time and granted decree and judgment and after setting aside the impugned judgment and decree passed by the Trial Court. Against which, the present Second Appeal is filed.
6.At the time of admission, this Court has framed the following substantial questions of law:
?(i)Whether the lower appellate court has erred in holding that the suit is maintainable, when there is a clear provision of Section 47 CPC which barred the same?
(ii)Whether lower appellate court has erred in holding that Article 136 of Limitation Act is applicable, when there is specific provision of Article 134 in the Limitation Act for recovery of possession by the auction purchaser??
7.The learned counsel appearing for the appellants would submit that the suit itself is not maintainable and the same is bar under Section 47 of C.P.C. Since the plaintiff ought to have file an execution application under Order 21 Rule 96 within a year as per the time stipulated under Article 134 of Limitation Act and therefore, the suit is not maintainable.
8.The learned counsel for the appellants relied upon some decisions reported in AIR 1973 SC 2423 (Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and others) and 1985(2) MLJ 311 (Devendra Nainar Vs. Badrabagu Mainar and others).
9.Resisting the same, the learned counsel appearing for the respondent would submit that the suit is maintainable. Article 134 of Limitation Act is applicable only an application for delivery before the Executing Court, otherwise, Article 136 is applicable.
10.To substantiate the above said contention, the learned counsel appearing for the respondent relied upon several decisions reported in
(i) 1996(5) SC 48 (Pattam Khader Khan Vs. Pattam Sardar Khan and another),
(ii) 2003(3) CTC 217 (The Nazareth Cooperative Building Society Limited through its Special Officer Vs. Kanakaraj and others),
(iii) 2009 (2) TNLJ 465 (Vaenda and others Vs. D.G.Narasimhan and others) and
(iv) 2012(2) LW 836 (S.Sivasubramanian Vs. N.Chinnasamy and another). He would further submit that the decision relied upon by the learned counsel for the appellants reported in 1985(2) MLJ 311 has been overruled in the judgment reported in 1996(2) CTC 1 and hence, he prayed for the dismissal of the Second Appeal.
11.Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent and perused the entire materials on record.
12.It is an admitted fact that the respondent herein is the court auction purchaser in E.P.No.100 of 1984 in O.S.No.158 of 1982, in which, the first defendant and defendants 2 to 4 are party. Since the suit has been filed by the Indian Overseas Bank and obtained mortgage decree, the property was sold in court auction in E.P.No.100 of 1984 in O.S.No.158 of 1982, in which, the plaintiff is the successful bidder. He purchased the property on 02.12.1985 through court auction and the same has been confirmed, however, he has not filed any application under Order 21 Rule 95 CPC for delivery. It appropriate to incorporate Order 21 Rule 95 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.?
13.The learned counsel would further submit that since the plaintiff has not filed execution petition for delivery of possession within a year as stipulated under Article 134 of Limitation Act, the suit is barred under Section 47 of CPC. It is appropriate to incorporate Section 134 as under:
?47. Questions to be determined by the Court executing decree (1) 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 be determined by the Court executing the decree and not by a separate suit.
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 purposes 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 purposes 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.] Limit of time for execution?
14.As already stated, the decision relied upon by the learned counsel for the appellants reported in 1885(2) MLJ 311 is overruled in 1996(2) CTC 1. Hence, this decision is not application to the facts of the present case. Once a judgment is overruled, the same is not reliable.
15.The another decision, which is relied upon by the learned counsel for the appellants is AIR 1973 SC 2423, in which, it was held that Section 47 should be construed liberally for delivery of possession, which is relating to the execution, discharge and satisfaction of the decree arising between the parties to the suit. Further, it was held that executing court has jurisdiction to deal with all the questions raised by the judgment debtor till the delivery of possession and the same should be decided by the executing court. The learned counsel relied upon paragraph Nos.5 and 6 of the judgment, which read as follows:
?5.As we have already said, the appellant relied on the Full Bench decision of the Lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the full bench of the Calcutta High Court in Kailash Tarafdar's case ILR 53 Cal.781. If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order XXI of the CPC. We are in respectful agreement with G.K.Mitter J, that the legislature must have thought that the duty of the executing court should not end with the confirmation of the sale and it is because the legislature though that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree.
6.Section 47 in our view should be construed liberally. As far back as in 1892 19 I.A. 166, the Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of CPC of 1882 which corresponded to present Section 47 of Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamacharia if a liberal construction be put upon Section 47 it is difficult to understand why a decree holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decree holder purchases the property in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him.
Having regard to this consideration, if any question is raised by the judgment debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.?
The above citation is not applicable to the facts of the present case.
16.In the present case, the decree holder himself is an auction purchaser. An application filed under Section 47 has to be decided liberally. But here the respondent is the third party to the suit. The suit has been filed by the Indian Overseas Bank. The plaintiff is an auction purchaser. As per Order 21 Rule 95 CPC, he can very well file an execution petition in the same suit within a year. As per Article 134 it has not been filed within a year and he ought to have invoke Article 136 of Limitation Act and hence, file a suit. So it is appropriate to incorporate Articles 134 and 136 of Limitation Act as under:
?134. For delivery of posse- One year. When the sale procession by a purchaser of becomes absolute. immovable property at a sale in execution of a decree.
136. For the execution of Twelve years. When the decree any decree (other than or order becomes a decree granting a mesne forceable or where mandatory injunction) or the decree or any order of any civil court.
subsequent order directs any payment of money or the de- livery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.?
17.It is appropriate to consider the decision relied upon by the learned counsel appearing for the respondent reported in 1996(2) CTC 1 in which in paragraph 13 of the judgment relied upon by the learned counsel for the appellants counsel was overruled. In the said judgment, it was specifically mentioned in paragraph No.13 as under - ?13.In view of the foregoing discussions, we hold that the conclusion reached by Sathar Sayeed, J. in Devendra v. Badrabagu, ILR 1986(2) Mad.72 that the only Article that is applicable to an auction purchaser to take delivery of possession is Article 134 of the Limitation Act, does not lay down the law correctly. It is therefore, overruled. We agree with the view expressed by Ratnam,J, in the decision reported in Mutha Pukhraj Ratnjee v. Ganesh Mull Adaji, 1983 (1) MLJ 443 and Balasubrahmanyan, J in the decision reported in Perumal v. Ramachandra Padayachi, 1981(1) MLJ 65, which was confirmed by the Supreme Court in Special Leave Appeal (Civil) No.6438 of 1981 (dated 26.08.1981).?
18.In 1996(5) SCC 48 (Pattam Khader Khan Vs. Pattam Sardar Khan and another), even though the sale became absolute on confirmation under Order 21 Rule 92 CPC, effectively passing title, the same can only be complete when evidenced by a sale certificate issued under Order 21 Rule 94. The period of one year limitation now prescribed under Article 134 of Limitation Act 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 sale becoming absolute, rather than from the date of issuance of sale certificate. In this judgment, it was specifically mentioned, on his failure to avail such a quick remedy, the law relegate to avail the remedy of filing a suit for possession in a regular way. So it is appropriate to incorporate paragraph Nos.12 and 13 of the judgment as under-
?12.Such being the state of law on the subject, we fail to see how the a High Court could have come to the conclusion that even though the sale becomes absolute on confirmation under Order 21 Rule 92 CPC effectively passing title, the same can only be complete when evidenced by a sale certificate issued under Order 21 Rule 94, and that unless the sale certificate is issued, limitation cannot start for the purpose of an application under Order 21 Rule 95 CPC, vis-a-vis, Article 134 of the Limitation Act, 1963. The High Court, in our view erred in holding that it is only from the date when a sale certificate is issued, that the limitation starts running. Such view of the High Court would not only cause violence to the clear provisions of Article 134 of the Limitation Act but have the effect of unsettling the law already settled.
13. 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 Article 134 of the Limitation Act, 1973, in substitution of a three year period prescribed under Article 180 of the Indian Limitation Act of 1908, is reflective of the legislative policy of finalising 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 relegates him to the remedy of a suit for possession in a regular way.?
19.In the decision reported reported in 2003(3) CTC 217 in which, a judgment reported in JT 1996(6) SC 201 in Pattam Khader Khan Vs. Pattam Sardar Khan and another has been relied upon. It is appropriate to incorporate paragraph No.25 of the judgment as under -
?25. The principles laid down by the High Courts and the Honourable Apex Court would disclose that the fact of noi initiating proceedings under Section 47 of the Code of Civil Procedure as contemplated under Article 134 of the Limitation Act, which is for quicker remedy, cannot bar the auction purchaser to approach the competent Court under common law to take delivery of possession within a period of 12 years from the date of the sale being made absolute. Therefore, the contention raised by the learned counsel appearing for the respondent that the suit is barred under Section 47 of the Code of Civil Procedure cannot be sustained in view of the case laws cited above.?
20.In yet another decision reported in 2009(2) TLNJ 465 (Civil) in Vaenda Vs. D.G.Narasimhan) in which, paragraph No.23 it has been held as follows:
?23. In Uma Shanker (Dead) and others v. Sarabjeet (Dead) By L.Rs. and others, AIR 1996 SC 1005, the Honourable- Apex Court was pleased to hold as follows:
On assessment of evidence, the trial Court was right in coming to the conclusion that on account of the dispossession of Damri Lal after the compromise decree, a fresh cause of action arose in his favour. There was no occasion for Damri Lal to have the compromise decree executed since he has given possession under the compromise decree. It was his dispossession thereafter which gave rise to the next round of litigation. Such litigation is not barred under Section 47 of the Civil Procedure Code. Section 47 bars a separate suit only in respect of questions relating to the execution, discharge or satisfaction of the decree. If there is a subsequent dispossession after the decree for possession is complied with, a suit to obtain possession is not barred simply because there was an earlier decree obtained by the plaintiff for possession which decree had been complied with. In fact, there will ,be ,no question of executing the earlier decree when it has already been complied with.?
21.In the decision reported in 2012(2) LW 839 in paragraph No.10, it was specifically mentioned though the auction purchaser had not availed the remedy provided under Code of Civil Procedure, it is always open to him to file a regular suit for possession based on title subject to the period of limitation prescribed therefor.
22.So considering all the above decisions, if an auction purchaser has not filed an application for delivery under Order 21 Rule 95 within a year as contemplated under Article 134 of Limitation Act, then the auction purchaser can very well file a regular suit for recovery of suit for possession within 12 years by invoking Article 136 of Limitation Act. So the argument advanced by the learned counsel for appellants that the suit is barred under Section 47 of Code of Civil Procedure does not merit acceptance. Further more, Article 134 of Limitation Act is not applicable to the present case is also not merit acceptance.
23.The First Appellate Court has considered all the aspects in proper perspective and correctly held that the regular suit for recovery of possession is maintainable and suit has been filed within 12 years from the date of confirmation of the sale. The auction purchaser / plaintiff / respondent has purchased property in Court auction on 02.12.1985 and he filed the suit in the year 1989 within 12 years. Hence, the plaintiff / respondent is entitled for recovery of possession. I do not find any irregularity or illegality in the decree and judgment passed by the First Appellate Court. Hence, decree and judgment dated 27.09.2004 in A.S.No.83 of 2002 passed by the First Appellate Court does not warrant any interference.
24.In the result, the Second Appeal is dismissed with costs throughout. Consequently, connected C.M.Ps.are closed.
To
1.The Subordinate Court, Periyakulam.
2.The District Munsif, Uthamapalayam. .