Andhra HC (Pre-Telangana)
Pattan Sardar Khan vs Pattan Rasool Khan And Anr. on 29 November, 1993
Equivalent citations: 1994(1)ALT15
ORDER B. Subhashan Reddy, J.
1. This Civil Revision Petition arises out of execution proceedings.
2. At issue is the proposition as to whether time for filing application for possession under Order 21 Rule 95 C.P.C. by the auction purchaser runs either from the date of confirmation of sale or from the date of issuance of the sale certificate.
3. In a suit for partition filed by one of the co-owners in O.S.No. 894 of 1975 on the file of the 1st Additional District Munsif, Nellore, it was held that even though the plaintiff was entitled for a share in the suit schedule property comprising a residential house at Nellore, having regard to the nature of the property, the same was not partible and was liable to be sold and the sale proceeds were to be apportioned. The said judgment and decree had become final. Letter on, consequential proceedings were initiated for putting the property to sale and in the sale, the revision petitioner (the plaintiff) was the highest bidder and the sale was knocked down in his favour. Neither any objection to the said sale nor any petition to set aside the sale was filed. The sale, thus, was confirmed. After confirmation of the sale, a sale certificate was issued. While the sale was confirmed on 7-8-1984, the sale certificate was issued on 9-11-1989. From the above, it is evident that there was a delay of about 5 years and 3 months in issuance of the sale certificate after the confirmation of the sale. The cause for the said delay was the process of adjudication as to whether it was a sale in common parlance or an auction sale through the process of Court and as to whether a regular sale deed has to be executed or a sale certificate should be issued and whether any poundage was to be imposed. Ultimately, it was held to be an auction sale and that a sale certificate has to be issued and that poundage has to be paid. After the plaintiff- revision petitioner has deposited the amount towards the poundage, the sale certificate was issued to him in November, 1989. During the month of December, 1989, the revision petitioner, annexing the copy of the sale certificate, has filed an application E.A. No. 41 of 1990 as contemplated under Order 21, Rule 95 read with Section 151 CPC for delivery of possession of the property purchased by him. As a counter blast, the judgment dated No. 3 had filed E.A.No. 160 of 1990 to dismiss the above E.A. filed by the revision petitioner on the ground that the application filed by the petitioner was time barred. The contention of the 3rd judgment debtor was that the limitation for filing an application for delivery of possession under Order 21 Rule 95 CPC is one year and that the said one year has to be reckoned from the date when the sale was made absolute and that under Order 21 Rule 94 CPC the sale in question became absolute on 7-8-1984 when the same was confirmed and as such, under Article 134 of Indian Limitation Act, the application filed by the revision petitioner stood time barred and was not maintainable.
4. The contention contra advanced by the petitioner that the sale became absolute only on the issuance of the sale certificate and that the application for delivery of possession having been filed the very next month after the issuance of the sale certificate in November, 1989 was well within time as the limitation runs from the date of issuance of the certificate and not from the date of confirmation of sale, did not find favour with the Court below and the Court below accepting the contention advanced on behalf of the third judgment debtor dismissed E. A.No. 41 of 1990 filed by the revision petitioner holding that the same was time barred. While rendering the judgment, the Court below interpreting the provisions of CPC vis-a-vis Article 134 of Indian Limitation Act has construed the commencement of limitation from the date of confirmation of sale holding that the said date gives rise to a right seeking for possession and that the auction purchaser need not have to wait till a certificate is issued. The auction purchaser, aggrieved by the same, has filed this revision petition.
5. Mr. P.V. Seshaiah, learned Counsel for the petitioner submits that the conclusions reached by the Court below are erroneous and that if they are not set aside, they will result in great miscarriage of justice as the petitioner, having participated in the Court auction and having been the highest bidder and after having been issued a sale certificate after deposit of full consideration amount within the stipulated time as also the poundage within the time fixed by the Court, would be deprived of the fruits of the Court sale made and confirmed in his favour, and that too at the instance of one of the judgment debtors. His contention is that this kind of sale should not be placed on the same pedastal as other Court auction sales as the sale in question took place through an Advocate-Commissioner in a partition suit on the ground that the property cannot be divided by metes and bounds. Mr. P.V. Seshaiah further contends that even if the distinction sought to be made out is not acceptable, the application filed by the petitioner was well within time as the time cannot run for filing an application under Order 21 Rule 95 CPC unless the sale certificate is issued, and without annexing a copy of the sale certificate, no application can be filed for delivery of possession as the delivery of possession has to be effected in consonance with the description of the property mentioned in the sale certificate.
6. Controverting the arguments of Mr. P.V. Seshaiah, Mr. Krishna Murty, learned Counsel appearing for the 3rd judgment debtor, who is the 2nd respondent herein, submits that the Court below was correct in rejecting the application filed by the petitioner by construing the legal provisions correctly and that Order 21 Rule 95 CPC, cannot be read in isolation and that the provisions of Order 21 Rule 95 CPC as also Section 65 CPC. have got to be borne in mind while construing the period of limitation under Article 134 of the Indian Limitation Act. His contention is that under Order 21 Rule 92 CPC the sale becomes absolute on confirmation of sale and the said absoluteness of the sale dates back to the date of sale under Section 65 CPC. and the title over the properties vests in the auction purchaser right from the date of sale. He stresses the word 'absolute 'incorporated in Article 134 of the Indian Limitation Act while contending that had the parliament intended to prescribe limitation from the date of issue of the sale certificate, it would have certainly employed the words 'sale certificate' in Article 134 of the Limitation Act and not the words "when the sale becomes absolute". In support of his contention Mr. Krishna Murthy cited the rulings in Ramchandra Bhagat v. Eva Mitra, ; Uddandi Ramakrishna Mudali v. Sivarama Prasad, AIR 1957 A.P. 73; Kasinath Pandaram v. Viswanatha Pandaram, 1966 Madras Weekly Notes 193 = 1979 Madras Law Weekly 105 while Mr. P.V. Seshaiah cited the judgments rendered in Chandra Mani Saha v. Sreemati Anarjan Bibi, 1934 (2) MLJ 79; Krishna Rao v. Bhaskararaopuram Co. op. Socy, AIR 1944 Madras 434; Pethaperumal Ambalam v. Chidambaram Chettiar, , Kamakshi Ammal v. Arukkani Ammal, (1957) I MLJ 180; P.G. Munnuswami Reddi v. P.R. Panduranga Chetty, ; Mallika v. Ayyappy Karunakaran, ; Ganpat Singh v. Kailash Shankar, in support of his contention.
7. Insofar as the argument of Mr. P.V. Seshaiah, learned Counsel for the petitioner, that a distinction has to be drawn between 'an auction sale' and 'a sale' in a partition suit is concerned, there is no legal basis for any such distinction and as such, the said contention is rejected. Further in execution proceedings, Section 151 CPC cannot also be pressed into service, in view of the specific provision contained under Order 21 Rule 95 CPC. As such, the only question which falls for consideration is the effect of Article 134 of Indian Limitation Act vis-a-vis the application under Order 21 Rule 95 CPC.
8. It is true that a sale becomes absolute under Order 21 Rule 92 upon its confirmation and that it dates back to the date of sale under Section 65 in so far as the vesting of the title in the auction purchaser is concerned. This is for the purpose of considering the title of the purchaser and also the factum of absoluteness with regard to sale insofar as the conduct of the proceedings is concerned. But considerations are totally different insofar as the limitation aspect is concerned.
9. In Chandra Mani Saha's case (4 supra) the Privy Council, while construing Article 180 of the Limitation Act, 1908, held that not only Order 21 Rule 92 CPC has got relevance for construing the words "when the sale becomes absolute", but other material sections and orders of the Code including those in Order 43, Rule 1 (j) also have got to be considered. The Privy Council held that so read and construed the provisions mentioned above, the position of law is that even after the sale is confirmed under Order 21 Rule 92, which is absolute insofar as the trial Court is concerned, the same was not absolute within the meaning of Article 180 of Limitation Act until the disposal of the appeal. In the case before the Privy Council, by the time the appeal was preferred, to the High Court, the sale was already confirmed. The application by the judgment debtor under Order 21, Rule 90 was dismissed on 15-4-1924, and on 22-4-1924, the Court confirmed the sale and the judgment debtor's appeal against the said order was dismissed by the High Court on 17-3-1927 and on 19-5-1928 and 6-6-1928, sale certificates were granted to the auction purchaser under Order 21 Rule 94 and the auction purchaser applied on 10-9-1928 for delivery of possession, a contention was raised by the opposite party that they were time barred. But the said contention did not find favour with the Executing Court. But the said order was set at naught by the High Court on the ground that they were time barred, upholding the contention raised that the sale had become absolute on 22-4-1924 when the Executing Court confirmed the sale and inasmuch as the application for delivery of possession was made on 10-9-1928, the same was barred by limitation. When the matter was carried to Privy Council, the Privy Council emphatically held that inasmuch as the appeal was preferred even though the objections to sale were overruled and the sale was confirmed and that the appeal was preferred later to the confirmation of sale, the limitation did not run for filing the application for delivery of possession by the auction purchaser until the matter was concluded finally against the judgment debtor and since the sale certificates were issued to the auction purchaser after the dismissal of the appeals by the High Court the limitation under Article 180 would run from the date of the sale certificates. Accordingly, the Privy Council concluded that the application filed by the auction purchaser was within the time of one year prescribed therefore. This judgment was followed by the Madras High Court in Kamakshi Ammal's case (7 cited supra). The same view was taken in Pethaperumal Ambalam 's case (6 cited supra). It was held that on the issuance of a sale certificate to the purchaser under Order 21 Rule 94, his title becomes perfect and complete and his right to possession is unimpeachable as against the parties to the suit as well as those claiming under them.
10. The decision cited in Krishna Rao's case (5 cited supra) has got no application to the facts of the instant case. Equally so is the judgment in P.G. Munnuswamy Reddi's case (8 cited supra). In Mallika's case (9 cited supra) relying upon Chandra Mani Saha's case (4 cited supra) as also other judgments, it was held that any order of confirmation by the executing Court would only be inchoate in nature and no finality could be attached to it and the application for delivery of possession of the property in the occupancy of the judgment debtor or of some person on his behalf has to be made in pursuance of the sale certificate issued under Rule 94 and that only one sale certificate is contemplated after the sale becomes absolute, and that is the one under Order 21 Rule 94 CPC. In Ganpat Singh's case (10 cited supra) the question which fell for consideration before the Supreme Court was as to whether the application for possession by an auction purchaser can be traceable to Article 136 of the Indian Limitation Act. In that case, an objection was filed by one of the judgment debtors to the sale and that was dismissed. More than one year elapsed and the auction purchaser did not take steps for delivery of possession. Thereafter another judgment-debtor has filed a second application to set aside the sale. The auction purchaser chose to file the application for delivery of possession within one year after the dismissal of the second application. When the question of limitation arose, the auction purchaser pleaded that, even though he was an auction purchaser, he has to be deemed to be a party in view of Explanation 2 to Section 47 of the Code and that being a party to the suit, by legal fiction, Article 136 of Indian Limitation Act is applicable and if it is so, the limitation was 12 years. Repelling the said contention, the Supreme Court held that the second application to set aside the sale was barred by principles of res judicata and the time to be computed for filing an application under Order 21 Rule 94 of CPC. was only one year from the date of dismissal of the first application to set aside the sale and that Article 136 of Indian Limitation Act was not at all applicable. The decision cited in Chandramani Saha's case (4 cited supra) was cited in the said judgment in the Supreme Court and it was considered in paras 13 and 14. The ratio decidendi of the Madras High Court Judgment in Chandramani Saha's case (4 cited supra) was not disapproved by the Supreme Court. The decision rendered in Kamakshi Ammal's case (7cited supra) also was not disapproved. But the application of the auction purchaser was held to be time barred by the Supreme Court on the ground that for filing an application under Order21 Rule 95 CPC the provision of Indian Limitation Act applicable is Article 134 and not 136 and that the time for filing such application ran from the date of rejection of the first application to set aside the sale and not from the date of the dismissal of the second application, to set aside the sale which was clearly barred by the principles of res judicata.
11. In Ramachandra Bhagat's case (1 cited supra) it was held that upon confirmation of sale under Order 21 Rule 92 CPC the sale becomes absolute and the title vests in the auction purchaser retrospectively from the date of sale as per Section 65 CPC. This has got no bearing on the question involved, in the instant case.
12. The decision rendered in Uddandi Ramakrishna Mudali's case (2 cited supra) has also got no bearing on the issue involved, in the instant case.
13. In Kasinatha Pandaram's case (3 cited supra) it was held by a learned single Judge of the Madras High Court that the period of limitation starts from the date of confirmation of sale and not from the date of issuance of sale certificate. The decision rendered by a Division Bench of the Madras High Court in Chandramani Saha's case (4 cited supra) was disapproved by the learned single Judge. But the judgment rendered by the learned single Judge does not give valid reasons for not accepting the binding Division Bench judgment earlier rendered by the same High Court and rather relied upon a judgment of Lahore High Court in Raja Raghunandan Prasad v. Commissioner of Income-Tax, Bihar and Orissa, which has got no bearing on the determination of the issues involved.
14. Analysing the judgments, the learned single Judge held:
"taking a comprehensive view of the law on the subject, it is practically settled law that, when a person wants to take delivery of the property purchased in a Court auction, the limitation starts from the date of confirmation of the sale and not from the date of issue of sale certificate by the Court. The view of the Court below seems to be, therefore, correct."
But this reasoning of the learned single Judge is not acceptable for the reason that the law laid down by the Privy Council in Chandra Mani Saha's case (4 cited supra) which was followed in Pethaperumal Ambalam's case (6 cited supra) and the same view being taken in Kamakshi Ammal's case (7 cited supra) and the Supreme Court having considered both the decisions in Chandra Mani Saha's case (4 cited supra) and Kamakshi Ammal's case (7 cited supra) in Ganpat Singh's case (10 cited supra) did not strike a different note and did not disapprove the proposition laid down that the limitation runs from the date of the sale certificate.
15. In view of what is stated supra, I hold that the provisions of Order 21 Rule 95 CPC are applicable for all Court sales regardless of the nature of the suit and that Article 134 of Limitation Act, 1963 is applicable for applications for delivery of possession under Order 21 Rule 95. Even though the sale becomes absolute on confirmation under Order 21 Rule 92 CPC, the said confirmation has to be evidenced by a sale-certificate which has got to be issued under Order 21 Rule 94 and it is only after sale-certificate is issued, the limitation runs for filing an application under Order 21 Rule 95 CPC vis-a-vis Article 134 of Indian Limitation Act, 1963. The words under Article 134 of Indian Limitation Act, 1963 corresponding to Article 180 of Indian Limitation Act, 1908, to the effect "when the sale becomes absolute" have to be read down in the context of application under Order 21 Rule 95 CPC as "when the sale-certificate is issued". The words under Order 21 Rule 95 CPC "...and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made....." are also very significant as the application under Order 21 Rule 95 CPC can be filed only after the sale-certificate is issued under Order 21 Rule 94 CPC and as such, no contention can be countenanced that the limitation will run from the date when the sale is confirmed. In that view of the matter, this revision petition is allowed and the order of the Lower Court is set aside. The revision petitioner shall be entitled to take actual, physical and vacant possession of the property purchased by him in the Court auction and as described in the sale-certificate issued in his favour on 9-11-1989. There shall be no order as to costs.