Madras High Court
N.M.Subramaniam .. Review vs Unnammal (Died) on 29 September, 2022
Author: P.T.Asha
Bench: P.T.Asha
Review Petition No.113 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 12.04.2024
PRONOUNCED ON: 28.06.2024
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
Review Petition No.113 of 2019
in S.A.No.97 of 2019
N.M.Subramaniam .. Review Applicant /
Appellant
-Vs-
Unnammal (died)
Thirumurthy (Died)
2. Sivakami
3. Rajeswari
4. D.Harish (Minor)
5. D.Haswath (Minor)
R4 and R5 rep by guardian Mother Rajeswari
6. T.Elavarasi
7. E.A.Nevitha (Minor)
8. E.A.Navetha (Minor)
Rep by mother T.Elavarasi
R2 to 8 brought on record as Lrs of R1, Thirumurthy
Vide order of Court dated 29.09.2022 made in
C.M.P.No.7344 of 2022 in
Rev.Appl.No.113 of 2019(PTAJ) ...Respondents
Prayer : Review Petition has been filed under Order 47 Rule 1, r/w. 114
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Review Petition No.113 of 2019
of C.P.C against the order dated 31.01.2019 made in S.A.No.97 of
2019 passed by this Court.
For Review Applicant... Mr.N.Manokaran
For Respondent-1 ... Died
For Respondent-2 ... Mr.G.Saravanakumar
For Respondent-3 ...Served – No appearance
For Respondents-4 & 5 ... Minors, Rep by R3
For Respondent-6 ....Served -No Appearance
For Respondents 7 & 8 ....Minors Rep by R6
ORDER
This review application has been filed contending that the judgment under review requires a reconsideration in the light of law laid down in 1996 (5) SCC 48 [Pattam Khader Khan vs. Pattam Sardar Khan]and 2017(6) CTC 602 [T.Muthukumarasamy vs. J. Selvasundarraj] and that in the light of the above two judgments, there appears to be an error apparent on the face of the record and there are sufficient reasons for seeking a review of the judgment. 2/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019
2. In the judgment under review, the judgments above referred to have not been brought to the notice of this Court and relying on the judgment reported in 2004 (4) CTC 148 [Ratan Bapu Patil (dead) by Lrs and Others Vs. Dodhu and Others], the second appeal has been dismissed.
3. In the light of the submissions made, the judgment which is the subject matter of this review petition requires to be reviewed and accordingly, the review application is allowed. Both the learned counsels have made their submissions in the main second appeal itself.
4. The above second appeal is filed challenging the concurrent judgment and decree passed against the plaintiff, an auction purchaser who had filed a suit for recovery of possession.
5. Since the facts of the case has been stated in the earlier 3/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 judgment dated 31.01.2019, the very same facts relevant for disposing of the above are reproduced herein below:
“2.The plaintiff is a successful bidder in a Court auction held in 13.06.2001 in E.A.206 of 2001 in E.P.No.51 of 2000. After the confirmation of the auction sale the plaintiff had moved for issuance of sale certificate and by an order dated 31.03.2010 the sale certificate was also issued to the plaintiff. Thereafter, on 15.06.2010, the plaintiff who was the auction purchaser took out proceedings under Order XXI Rule 95 read with read with Section 151 of the Code of Civil Procedure in E.P.No.28 of 2010 for delivery of possession. Since the Execution Petition is filed much beyond one year period the Execution Petition was dismissed giving liberty to the petitioner to file a suit. 4/41
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3.Pursuant to this Order on 18.04.2011 the plaintiff had filed the suit O.S.No.42 of 2012 on the file of the District Munsif Court, Sathyamangalam for recovery of possession of the property which is the subject matter of this Second Appeal. The suit was dismissed on the ground that it was barred by the provision of Article 134 of the Limitation Act, which provides that any proceedings for recovery of possession by the auction purchaser should be made with a period of one year from the date of the confirmation of the sale. The Court below has opined that recovery of possession was not in the usual course but only as a auction purchaser and when the Act specifies a particular time period the hands of the court are tied.”
6. The short point that is placed for the consideration of this 5/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 Court in this second appeal and which is framed as the substantial questions of law are as follows:
“(1) Whether the period of limitation for filing a petition for delivery of possession by an auction purchaser commences one year from the date when the sale had become absolute or one year from the date of issuance of the sale certificate, in other words would the provisions of Article 65 or Article 134 of the Limitation Act that applies?
(2) Whether the suit filed by the appellant /plaintiff is barred under Section 47 of the Code of the Civil Proceedure particularly when the suit itself was filed pursuant to the liberty granted in E.P.No.28 of 2004 in O.S.No.265 of 1999 dated 17.02.2011 which was passed after hearing the arguments of both the parties.”
7. Mr.N.Manoharan, the learned counsel appearing on behalf of the appellant /plaintiff would contend that the suit filed by the plaintiff 6/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 has been dismissed by both the Courts below on the ground that the suit is barred by the provisions of Section 47 of the Code of Civil Procedure and that the remedy available to the plaintiff was only to file an execution petition within the time specified under Article 134 of the Limitation Act. In support of his arguments that the above findings are erroneous, he had relied upon the following judgements and submitted that the second appeal be allowed.
Sl.No Judgments
1 1996 (5) SCC 48
[Pattam khadher Khan vs. Pattam Sardar Khan] 2 2021(2) MWN 611 [Danish Varghese Vs Jancy Danish] 3 2017(6) CTC 602 [T.Muthukumarasamy Vs. J.Selvasundarraj] 4 2017(3) KLT 135 [N.G.Aravaindakshan Nair Vs.Binoy Kurian] 5 2012(2) LW 839 [S.Sivasubramanian Vs. N.Chinnasamy and another] 6 2003(3) CTC 217 [The Nazareth cooperative building society Ltd. Vs. Kanagaraj] 7 2019(4) SCC 348 [Ananth Shankar Bhave Vs Kalyan Dombivali 7/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 Sl.No Judgments Municipal Corporation]
8. On the other hand, Mr.G.Saravanakumar, learned counsel appearing on behalf of the second respondent would rely upon the judgment in the case reported as K.R.Lakshminarayana Rao Vs. New Premier Chemical Industries 2005(9) SCC 354 where a two judge Bench of the Hon'ble Supreme Court had held that an auction purchaser can recover possession from the judgment debtor only in terms of Order 21 Rule 95 C.P.C and not by way of a separate suit. He would also rely upon the judgment reported in 2002(2) LW 690 [Suseela and Others Vs. Ramasami Gounder and Others] where the learned single Judge had held that the remedy available to the plaintiff therein was only to take proceedings within one year from the date of Court auction purchase or on issue of the sale certificate through the execution proceedings and he cannot file a suit for recovery of possession. He would also rely upon the judgment of a this Court reported in 2015 (3) 3 CTC 614 [A.Kamal Batcha Vs. Gokulam Ammal] where the learned 8/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 single Judge observed that Article 134 of the Limitation Act which prescribes the period of one year for filing an application for delivery of possession by an auction purchaser would apply from the date of the confirmation of the sale. The learned Judge also observed that in the light of the specific bar in Section 47 of C.P.C, a separate suit cannot be filed by an auction purchaser.
9. Heard the learned counsels on either side. The Substantial questions of law being a purely legal issue, this Court is now proceeding to analyze the judgments that have been produced on the side of both the parties in order to answer the substantial questions of law.
10. The Hon'ble Supreme Court in the case of Pattam Khader Khan vs. Pattam Sardar Khan reported in 1996(5) SCC 48 which had emanated from this Court, was a case where the sale had been 9/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 confirmed on 07.08.1994, the sale certificate was issued on 09.11.1989 and the application for delivery was moved on the very same day, i.e on 09.11.1989 under Order 21 Rule 95 C.P.C. An objection was taken that in the light of the provisions of Article 134, the petition for delivery was barred by limitation. The learned Judges, relying on earlier judgments of the Privy Council in the case of Chandra Mani Saha and Others Vs. Anarjan Bibi & Ors. AIR 1934 Privy Council 134 and AIR 1953 SC 425 Shri Ranga Nilayam Rama Krishna Rao vs. Kandokori Chellayamma and another, observed that where applications for setting aside the sale have been made then the limitation should be computed from the date on which these proceedings had come to an end and the sale is confirmed by an executing Court. The learned Judges observed that the issuance of the sale certificate is only a formal acknowledgment of a fact already established, i.e., the auction sale. The sale certificate is merely a document evidencing the fact that an auction is held and the person in possession of the sale certificate is the successful purchaser. Therefore, 10/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 the Hon'ble Supreme Court had observed as follows:-
"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 finalizing proceedings in execution as quickly as possible by providing 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 such quick remedy the law relegates him to the remedy of a suit for possession in a regular way."
11. The judgment of the Full Bench of the Kerala High Court reported in 2021 (2) MWN (Civil) 611 = 2020 SCC Online Ker 7700 [Danish Varghese vs. Jancy Danish] was in respect of a question of 11/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 law which was referred to the Full Bench for resolution. The question that was referred was as follows:
"Whether an auction purchaser in a court sale is entitled to file a separate suit for declaration of title and recovery of possession of the auctioned property based on the sale certificate issued by the Execution Court, after the period of limitation of one year from the date when the sale became absolute, as provide under Article 134 of the Limitation Act."
The Full Bench speaking through Justice Sunil Thomas had observed that for considering the reference, two ancillary points had to be analyzed and the same is extracted below.
1. What is the starting point of one year limitation period prescribed under Article 134 of the Limitation Act.
2. Is it mandatory for the auction purchaser to take delivery of the property purchased by him in court auction.
12/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 The Bench thereupon proceeded to pass the orders on the basis of these ancillary points. After relying on various judgments including Chandra Mani Saha's case and Pattam Khader Khan's case, the Full Bench answered the first proposition as follows:
"19. Under Section 134 of the Limitation Act, the starting point for filing an application for delivery of possession is when the sale becomes absolute. Analysis of the above case laws indicates that the term ‘when sale becomes absolute’ does not refer to the sale becoming absolute under Order XXI Rule 92 CPC. The decisions in Chandra Mani Saha, Sri Ranga Nilayam and Pattom Khader Khan affirm that, sale becomes absolute when the title of property passes to the auction purchaser on passing of order under Order XXI Rule 95. Above judicial 13/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 precedents reiterate that the date when the sale becomes absolute as referred in Article 134 need not correspond to the date of sale or to the date of issuance of sale certificate or passing of the order making the sale absolute under Order XXI Rule 92. Passing of such an order under Order XXI Rule 92 is mandatory obligation of the executing court, if no application is made under Rules 89, 90 and 91 of Order XXI or if such an application is filed, after it is dismissed. However, in case of pendency of consequential proceedings in which Court sale is under challenge, starting of limitation period under Article 134 of the Limitation Act may get extended depending on the pendency of such proceedings. This is evident from the judgment of Supreme Court in United Finance Corporation (supra) wherein it was held that Legislature consciously adopted the 14/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 expression “when the sale becomes absolute” in Article 134 and not when sale was confirmed. So long as revision filed against an order passed in the Court of execution proceeding was pending, it could not be held that, sale has become absolute, it was observed. Sale becomes absolute on the culmination of above proceedings. This is the starting point of limitation in filing application under section 134 of Limitation Act 1973."
12. With reference to Point No.B "Whether it is mandatory for the auction purchase to take possession of the property purchased in auction", the Bench, after analyzing the judgment of the Hon'ble Supreme Court reported in (1973) 2 SCC 467 [Hamandari Badridas Vs.Debidutt Bhagwati Prasad], observed that the judicial view was that it was imperative for a decree holder to take possession of the property auctioned by him. If he fails to get possession through 15/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 execution Court, his relief under Order XXI C.P.C is lost, though his title to the property subsists.
13. With reference to the main point of reference, the Bench took note of the divergent view that had emanated on the question as to whether an auction purchaser who failed to apply for delivery in accordance with Article 134 of the Limitation Act was entitled to file a fresh suit. After discussing the judgments on this point both of the Hon'ble Supreme Court and the High Courts, the Bench answered the issue as follows:
"51. In the light of the above, the Reference is answered holding that on failure of an auction purchaser to apply for delivery as provided under Order XXI Rule 95 CPC, his right to file a fresh suit for enforcing delivery in execution is barred. However, suits which do not offend Section 47 CPC and suits for 16/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 possession on the strength of title deed including purchase certificate that fall within the frame work of Article 65 of Limitation Act would be maintainable. To that extent, the law laid down in Lakshminarayana's case and followed by the Division Bench in Anjaneyan's case is the correct exposition of law."
Thereby the Full Bench followed the dicta in the case of Lakshminarayana Rao that a suit by an auction purchaser simply to recover possession of the property of which he was a successful bidder would not lie but added that suits not falling within the bar of Section (4) C.P.C could be instituted.
14. A single judge of this Court in the judgment reported in 2017 (6) CTC 602[T.Muthukumarasamy Vs. J.Selvasundarraj] was considering a similar case where an execution petition having been 17/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 dismissed for default, the purchaser had come up with the civil suit for recovery of possession. The suit was decreed by the trial Court and confirmed in appeal and the same was taken up on second appeal before the Madurai Bench of the Madras High Court. The Court had framed the following substantial questions of law:
"3. Though several substantial questions of law have been raised by the learned counsel for the appellant, this Court framed the following substantial questions of law while admitting the Second Appeal:
(1) Whether a separate suit by the auction purchaser for recovery of possession is barred under Section 47 of Civil Procedure Code?
(2) Whether the respondent/plaintiff, having filed an application in execution for the delivery of the property based on his purchase in the auction conducted in execution of the decree and having allowed it to be dismissed for default, is debarred from filing a suit for the delivery of the property purchased in Court auction?"18/41
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15. The learned Judge relying on the judgment of the Hon'ble Supreme Court reported in 2006(3) SCC 49 Balakrishnan Vs. Malayandi Konar held that the remedy of an auction purchaser to file a regular suit for possession based on title is not barred subject however to the law of limitation.
16. The learned Judge observed that the application under Order 21 Rule 95 C.P.C is a quicker remedy. However, a separate suit based on title is independent and protected under the common law principles. Therefore, the second appeal was dismissed answering the substantial questions of law in favour of the plaintiff. The learned Judge has observed in paragraph 27 of the judgment as follows:
"27. Therefore, the questions of law raised herein are answered by holding that the suit for declaration of title and for recovery of possession on the basis of the title of the auction purchaser is 19/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 not barred under Section 47 C.P.C. and that even after dismissal of an application filed by the auction purchaser under Order 21, Rule 95 for delivery of possession for default or on the ground of limitation, the auction purchaser can file a suit for declaration of title and for recovery of possession within twelve years. Hence, the above second appeal is dismissed confirming the judgment and decree of the Courts below. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed. Therefore, the questions of law raised herein are answered by holding that the suit for declaration of title and for recovery of possession on the basis of the title of the auction purchaser is not barred under Section 47 C.P.C. and that even after dismissal of an application filed by the auction purchaser under Order 21, Rule 95 for delivery of possession for default or on the ground of limitation, the auction purchaser can file a suit for declaration of title and for recovery of possession within twelve years. Hence, the above second appeal is dismissed confirming the judgment and decree of the Courts 20/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 below. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed."
17. A single Judge of this Court, in the judgment reported in 2003 (3) CTC 217 [The Nazareth cooperative building society Ltd. Vs. Kanagaraj], relying upon the judgment in Pattam Khader Khan's case observed as follows:
"25. The principles laid down by the High Courts and the Honourable Apex Court would disclose that the fact of not initiating proceedings u/s 47 of the CPC 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 u/s 47 of the CPC cannot be sustained in 21/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 view of the case laws cited above."
18. The learned counsel for the appellant / plaintiff has also drawn the notice of this Court to the judgment of another two judge Bench of the Hon'ble Supreme Court reported in (2023) 9 SCC 281 [Bhasker and Another vs. Ayodhya Jewellers] the learned Judges sought to differ with the ratio laid down by the earlier two judge bench in Pattam Khader Khan's case by stating that issuance of a sale certificate is a sine qua non for an auction purchaser for filing the application under Order 21 Rule 95 CPC considering language of the said provision. The learned Judges had therefore proceeded to refer the matter for consideration to a larger Bench and the issue is still hanging fire. The Bench in this case was not called upon to consider the issue as to whether a separate suit could be instituted by the auction purchaser for recovery of possession.
19. A single Judge of this Court, in the judgment reported in 22/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 2022 (5) CTC 881 [K.Palanichamy Gounder Vs.Kandasamy Gounder and Others], considered the following issue:
"(a) Does Explanation II (b) of Section 47 CPC bar a suit for recovery of property by an auction purchaser; and (b) Is there a period of limitation for an auction purchaser of a fractional share of the judgment debtor's property to seek partition vis-A-vis the other co-sharers or co-owners".
20. The learned Judge while examining the pre and post 1976 amendment to CPC observed that the narrative of the judicial precedents emphasis that the substantial right of the auction purchaser to take delivery of the property through a regular suit is not barred and the same is preserved. Barring the judgment of the Hon'ble Supreme Court reported in (2005)9 SCC 354 K.R. Lakshminarayana Rao Vs New Premier Chemical Industries which again was a judgment of a two judge Bench of the Hon'ble Supreme Court, all the other judgments have taken the view that suit is not barred. In 23/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 Lakshminarayana Rao's case, the learned Judges held that a separate suit for seeking recovery of possession by an auction purchaser was not maintainable as his remedy is provided under the provisions of Order 21 Rule 95 of C.P.C The learned single Judge sought to distinguish the judgment is Lakshminarayana Rao's case by interpreting the Explanation II(b) to Section 47 C.P.C. The learned Judge observed as follows in paragraph No. 21.
"21. It now leads to one conclusion:
that Order XXI Rule 95 CPC cannot be construed as the exclusive repository of options available to the auction purchaser to take delivery of the property, and that it is merely one of the options. Hence, the phraseology employed in Explanation II(b) to Sec.47 CPC can do no damage to the common law remedy to seek possession which is inherent in, and incidental to the ownership of an auction purchaser. And, the questions that would fall within the purview of Explanation II(b) and Sec. 47(1) CPC are those questions of which the Execution Court has taken cognizance of while dealing with an application under Order XXI Rule 24/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 95 CPC, and has actually dealt with it, and not any other. Necessarily, the bar under Sec.47(1) taken along with Explanation II(b) CPC cannot be extended to cases where the Execution Court's jurisdiction is neither invoked, or having invoked, the Court refuses to take cognizance due to bar of limitation under Article 134 of the Limitation Act (as has happened to the plaintiff in this case), or where it dismisses an application for default."
Ultimately, the learned judge proceeded to hold that the suit was maintainable.
21. In order to appreciate and answer the substantial questions of law framed in this case in the backdrop of the above judicial pronouncements, the following dates and events would assume significance.
31.03.2010 Suit O.S.No.265 of 1999 filed by the plaintiff against the deceased defendant was decreed.
31.01.2002 Property was brought to auction in E.P.No.28 of 2004.
Property sold to the plaintiff / auction purchaser for Rs.1,00,100/-
23.08.2007 E.P.No.28 of 2004 confirmed by the Court 25/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 31.03.2010 Sale certificate issued in E.P.No.28 of 2004 15.04.2010 Plaintiff / auction purchaser filed E.P.No.28 of 2010 for delivery of possession 17.02.2011 Application was entertained and dismissed on the ground that the application had not been filed within one year from the date of confirmation of the sale, as prescribed under Order 21 Rule 95 C.P.C. However, liberty was granted to the petitioner to file a fresh suit for delivery of possession.
18.04.2011 Plaintiff / Auction purchaser filed the suit subject matter of this second appeal (O.S.No.42 of 2012 on the file of the District Munsif Court, Sathyamangalam)
22. The trial Court, relying on the provisions of Section 47 of Code of Civil Procedure, observed that the plaintiff / decree holder / auction purchaser in the earlier proceedings was a party to the suit. Therefore, as per the provisions of Section 47(1) of C.P.C, the plaintiff was barred from filing a fresh suit. The trial Court had relied upon the judgment of this Court reported in 2015 (3) CTC 614 [A.Kamal Batcha Vs. Gokulam Ammal] . The learned Judge further observed that the remedy available to the plaintiff, being an auction purchaser, was only to file a petition for delivery in execution proceedings within a period of one year from the date of the confirmation of the sale and not by filing a separate suit. The lower appellate Court has also 26/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 concurred with the above finding of the trial Court.
23. The judgements which have been referred to supra, barring the judgment of the Hon'ble Supreme Court reported in (2023) 9 SCC 281 [Bhasker and Another vs. Ayodhya Jewellers] proceeded on the premise that the time of one year would commence from the date of confirmation of the sale and not from the date when the sale certificate has been issued. However, the learned Judges in Bhaskar's case supra sought to differ with the judgment of the earlier two judge bench in the case reported in 1996 (5) SCC 48 [Pattam Khader Khan vs. Pattam Sardar Khan]. The learned Judges held, that a reading of the provisions of Order 21 Rule 95 C.P.C would make it clear that the cause of action for filing the application for delivery of property in occupation of the judgment debtor or of some person on his behalf or of some person claiming title under the judgment debtor, could be made only after the sale certificate has been issued to the auction purchaser. The learned Judges took note of the language of the provisions of Order 27/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 21 Rule 95 C.P.C which talks about taking delivery from the judgment Debtor. It would be useful to extract the provisions of Order 21 Rule 95 which reads as follows:
“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 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.” The learned Judges observed that this provision stipulates that delivery can be claimed only after the sale certificate as contemplated under Order 21 Rule 194 C.P.C was obtained by the auction purchaser. Therefore, they held that the Article 134 which governs the period of 28/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 limitation for an auction purchaser to seek delivery of possession would start from the date on which the sale certificate is issued to him. No doubt, the sale certificate would date back to the date of sale. This judgment did not however consider the factum of an auction purchaser filing a separate suit which is the issue in the case on hand.
24. In Pattam Khader Khan's case, the provisions of Section 47 of the Code of civil proceedure was also not called into question. The learned Judges had by way of an obiter observed that where an auction purchaser has failed to avail the remedy prescribed under Order 21 Rule 95 r/w Article 134 of the Limitation Act., then the law would relegate him to a suit for partition in the regular way. The Full Bench of the Kerala High Court was called upon to answer the reference as to whether an auction purchaser in a Court sale is entitled to file a separate suit for declaration of title and recovery of possession based on the sale certificate after the period of limitation date of one year from the date when the sale becomes absolute as prescribed under Article 134 of the 29/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 Limitation Act. While answering the reference, the Full Bench has touched upon the provisions of Article 134 of the Limitation Act and held that the legislature consciously adopted the expression “when the sale becomes absolute” in Article 134 and not from the date when the sale was confirmed. Therefore, they observed that the starting point of limitation for filing an application for recovery of possession under Article 134 of the limitation Act would be the point when the sale becomes absolute. However, the Full Bench did not have the benefit of the judgment of the Hon'ble Supeme Court in Bhaskar's case which was pronounced later. They had also held that it was mandatory for the auction purchaser to take possession of the property purchased in auction. The learned Judges observed that if an auction purchaser fails to take possession under Order 21 Rule 95 C.P.C it is only his relief under 21 C.P.C which is lost, but his title to the property subsists.
Therefore, the learned Judges ultimately held that where an auction purchaser fails to apply for delivery as provided under Order 21 Rule 95 C.P.C, his right to file a fresh suit for enforcing delivery for 30/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 execution is barred. However in cases which do not offend the language of Section 47 of C.P.C suits for possession based on the title deed, including the sale certificate, would fall within the frame work of Article 65 of the Limitation Act and would therefore be maintainable. The learned judges had relied upon the judgment reported in 2005(9) SCC 354[ K.R.Lakshminarayana Rao Vs. New Premier Chemical Industries].
25. The learned single judge of this Court in the judgment reported in 2017(6) CTC 602 [T. Muthukumarasamy vs. J. Selvasundarraj] dealt with the issue of whether, after an auction sale in execution of a decree, a decree holder / auction purchaser should move the executing Court for delivery of vacant possession of an immovable property or whether he should file a separate suit. The learned Judge, taking into consideration the provisions of Section 47, held that though the amended Section 47 observed that an auction purchaser could apply for possession without resorting to a separate 31/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 suit, it had however not barred the maintainability of a suit. He had relied upon the judgment of the Hon'ble Supreme Court reported in 2006(3) SCC 49 Balakrishnan Vs. Malayandi Konar where the Hon'ble Supreme Court had observed that where a person failed to avail the quick remedy of getting delivery through the executing Court, he could file a regular suit based on title , of course subject to the law of limitation. It has to be borne in mind that in the case of Balakrishnan supra the provisions of Section 47 C.P.C was not called in question and the learned Judges relying on the obiter made in the passing in Pattam Khader which is highlighted in paragraph 10 supra discussed that a separate suit would lie.
26. In Pattam Khader Khan's case, the issue that was placed for the consideration of the Court was whether the limitation period prescribed under Article 134 of the Limitation Act would commence on the date on which the sale is confirmed or the date of issuance of the sale certificate. The very same issue was raised in the case of 32/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 Balakrishnan Vs. Malayandi Konar. The learned Judges while discussing the provisions of Article 65 held that the failure to avail a quick remedy in law namely the procedure of filing an application under Order 21 Rule 95 C.P.C would relegate an auction purchaser to a regular suit based on title subject to limitation. However in the case of Lakshminarayana Rao's case, this question was specifically placed for the consideration of the Hon'ble Supreme Court since the trial Court had held that Section 47 C.P.C would be a bar to filing of a suit. The learned Judges after extracting the provisions of Order 21 Rule 95 C.P.C had observed in paragraph 8 as follows:
“8.A bare perusal of the aforementioned provisions would leave no manner of doubt and in particular having regard to the amendments carried in C.P.C by reason of the CPC Amendment Act, 1976 that the steps for obtaining delivery of property in occupancy of the judgment-debtor is required to be taken by the auction-purchaser in terms of Order 21 33/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 Rule 95 C.P.C and thus, a separate suit to enforce such a right would, therefore, be not maintainable.” The learned Judges therein had also relied upon the judgment of the Hon'ble Supreme Court reported in (1983) 4 SCC 461 [Nandarani Mazumdar Vs Indian Airlines] and held in paragraph 12 as follows:
“12. A bare perusal of the said judgment, therefore, would clearly go to show that although it was held therein that a separate suit would not be maintainable for the purpose of recovery of possession of a property which was in possession of the judgment-
debtor, but, Their Lordships proceeded to grant relief to the decree-holder ex debito justitiae by directing that the plaint be treated as an application under Order 21 Rule 95 of the Code of Civil Procedure. “ Ultimately, the learned Judges had confirmed the judgment and decree of the trial Court holding the suit to be barred under Section 47 of 34/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 C.P.C.
27. Section 47 of the Code of Civil Procedure would read as follows:
"47. Questions to be determined by the Court executing decree.— 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."
Therefore, a reading of the provisions of Section 47(1) clearly shows that the questions between the parties to a suit relating to the execution , discharge or satisfaction has to be determined by the executing Court and not by the separate Court and explanation (2)(b) says that question relating to delivery of possession is also a question relating to the 35/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 execution discharge or satisfaction of the decree. Further, when the earlier execution petition was dismissed, it was dismissed on the ground that the execution petition ought to have filed within one year from the date when the date of the confirmation of the sale. Liberty has been granted to the plaintiff on the premise that the suit would be one based on title as the plaintiff would be filing a suit for recovery of possession on the basis of being an owner of the property. This observation no doubt has been followed in an earlier judgment of this Court reported in 2017(6) CTC 602 [T.Muthukumarasamy vs. J. Selvasundarraj] . However, I am unable to subscribe to the view of the learned single Judge, since the language of Section 47 of the code of civil procedure is unambiguous and the Hon'ble Supreme Court has in the judgment in Lakshminarayana Rao's case clearly held that the remedy for an auction purchaser is only by way of a petition under Order 21 Rule 95 C.P.C and not by way of a separate suit.
28. Therefore from the discussion above the following facts 36/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 emerge:
(a). The language of the provisions of Order 21 Rule 95 of Civil Procedure Code prescribes that once a sale becomes absolute (i.e, after the disposal of all the applications challenging the sale comes to a logical end or where there is no challenge then on the date of sale), the auction purchaser is entitled to a certificate giving particulars of the property sold and the name of the auctioneer and purchaser. Such a sale certificate will date back to the date of the auction sale. 2023 (9) SCC 281- Bhaskar & Anr. v. Ayodhya jewellers.
(b) Rule 95 which deals with the delivery of property in the hands of the judgment debtor to the auction purchaser stipulates that once a sale certificate under Order 21 Rule 94 Civil Procedure Code is given to the applicant he can make an application to take delivery of possession from the judgement debtor or some person on his behalf or claiming under him.
37/41
https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 (3). Section 47 Civil Procedure Code creates an express bar for filing a separate suit to determine the question between the parties to the suit relating to its execution, discharge or satisfaction of the decree. As per Explanation II(a) the auction purchaser of property is a party to the suit. Explanation II(b) explains that questions relating to delivery of possession of the property to the purchaser or his representative is also considered a question relating to the discharge, execution & satisfaction of the decree. 2005 (9) SCC 354 K.R.Lakshminarayana Rao v. New premier chemical industries.
29. By reason of the judgment of the Hon'ble Supreme Court in the case of Bhaskar, the commencement of the period of limitation for filing a petition under provisions of Order 21 Rule 95 C.P.C would be the date on which the sale certificate has been issued. The article governing such an application is Article 134 of the Limitation Act and not Section Article 65. The first substantial question of law is therefore answered as follows:
38/41
https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 The period of limitation for filing a petition for delivery of possession by an auction purchaser commences one year from the date when the sale certificate has been issued and it is Article 134 of the Limitation Act that would apply.
30. As regards the second substantial question of law, in the light of the language of Section 47 of the code of Civil Proceedure and the judgment in Lakshminarayana Rao's case, the instant suit is barred. The plaintiff herein is not only the auction purchaser but he is also the plaintiff and the decree holder in the earlier suit. Therefore, he is very much a party to the proceedings dehors he being an auction purchaser. Therefore, he is squarely comes withing the prohibition set out in Section 47. The second substantial question of law is also answered against the plaintiff. In fine, the second appeal is dismissed. There shall be no order as to costs.
39/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 28.06.2024 Index : Yes/No Speaking order/non-speaking order srn P.T.ASHA srn Review Petition No.113 of 2019 in S.A.No.97 of 2019 40/41 https://www.mhc.tn.gov.in/judis Review Petition No.113 of 2019 28.06.2024 41/41 https://www.mhc.tn.gov.in/judis