Madras High Court
A. Kamal Batcha vs Gokulam Ammal on 3 March, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 3.3.2015
CORAM
THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA
C.R.P.NPD (MD) No.2076 of 2003
A. Kamal Batcha ... Petitioner
Vs
1. Gokulam Ammal
2. Kannappan @ Arunachalam
1 and 2 are the LRS of Vinaitheertha Chettiar
3. C. Ramadoss
4. C. Lakshmanan
5. C. Baskaran
6. C. Ganesan
7. C. Shanmugaham
8. C. Sundaram
9. C. Renganathan
10. C. Swaminathan ... Respondents
Petition filed under Article 227 of the Constitution of India against
the order passed on 30/7/2003 in I.A.No.248 of 2002 in O.S.No.7 of 1993 on
the file of the Subordinate Judge, Kumbakonam.
!For petitioner ... Mr.A.Arumugam
for M/s.Ajmal Associates
^For respondent ... Mr.M.R.S.Prabhu for R.1
No appearance
for R.R.2 to 10.
:ORDER
The Court auction purchaser is the revision petitioner herein.
2. A few facts which are necessary for the disposal of this Civil Revision Petition are as follows:-
O.S.No.7 of 1973 was filed for partition on the file of the Sub-Court, Kumbakonam. A preliminary decree was passed on 19/11/1974. An appeal against the same in A.S.No.14 of 1977 was filed on the file of the District Court, Thanjavur. On 24/2/1977, the appeal was dismissed. As the property was not capable of being divided, it was decided to sell the property in Court auction. Accordingly, on 25/1/1978, the Court auction was held. On 20/1/1979, the sale was confirmed by virtue of an order passed in I.A.No.451 of 1977. On the same day, i.e., on 20/1/1974, a final decree was passed. There was also an appeal against the final decree in A.S.No.146 of 1977. On 28/2/1980, the said appeal was dismissed. While so, the parties preferred another suit for the same relief of partition in O.S.No.78 of 1984. The said suit was dismissed on 12/2/1986 and the appeal against the same was also dismissed.
3. Pending appeal, C.M.P.No.8652 of 2000 was filed by the auction purchaser for amendment and correction of the description of the property. It was dismissed on 20/7/2000. Not satisfied, the auction purchaser had filed C.M.P.Nos.1534 and 1535 of 2001 again for correcting the description of the suit property in the order passed on 20/7/2000. The said C.M.Ps came to be dismissed on 5/3/2001 as not maintainable. In the said order, it was observed that the Court auction purchaser would be eligible for sale certificate only in execution of the decree in which the property concerned has been sold. Thereafter, on 1/11/2001, I.A.No.248 of 2002 was filed by the Court auction purchaser for issuance of sale certificate. The said I.A was dismissed on 30/7/2003 by the Principal Sub-Court, Kumbakonam. Aggrieved by the said order, the above revision has been filed.
4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
5. The revision petitioner, who is the auction purchaser contended that the interest of the Court auction purchaser has to be protected by the Court. It was further contended that there were four stages for a Court auction purchaser before taking delivery of the property, viz.,
(i). passing of the final decree;
(ii). Making the sale absolute;
(iii). Issuance of sale certificate and
(iv). Delivery of possession.
6. The auction purchaser/revision petitioner contended that the sale does not become absolute by mere passing of an order of confirmation. The sale will attain finality only after the disposal of the appeal against the final decree. It was contended further by the learned counsel for the petitioner that A.S.No.146 of 1979 was pending before the District Court. Therefore, the sale could have been confirmed only after the disposal of the appeal. Therefore, Article 134 of the Limitation Act, though fixes the period as one year from the date when the sale becomes absolute under Rule 95 of Order 21 of the Code of Civil Procedure, the sale becomes absolute only after issuance of the sale certificate which is yet to be issued to the petitioner. As the sale certificate was not issued till then, the petitioner had approached the Court by filing I.A for issuance of the sale certificate. According to the petitioner, the auction sale does not become absolute merely on passing of an order, confirming the sale under Order 21 Rule 94 of the Code of Civil Procedure, but it would attain finality only on the disposal of the appeal. As the final decree was passed only on 20/1/1979 and the appeal was disposed of only on 28/2/1980, there was no confirmation. Therefore, prayed that the trial Court ought to have issued the sale certificate.
7. On the contrary, the learned counsel appearing for the respondent contended that when the sale was confirmed on 20/1/1979, the auction purchaser should have taken steps within a period of one year to get the sale certificate issued in his favour.
8. The learned counsel appearing for the respondents stoutly denied the fact that the provisions of the Limitation Act do not apply to the application for the issuance of sale certificate. No doubt, the Court is bound to grant the sale certificate. Once the sale becomes absolute as the function of issue of sale certificate is ministerial and not judicial, there was no necessity for the auction purchaser to apply for issuance of sale certificate.
9. This was objected to by the learned counsel for the respondents that since the application of the revision petitioner is barred by limitation as prescribed under Article 134 of the Limitation Act, no order for delivery of possession will be given in favour of the first respondent. The Executing Court also sustained the said objection holding that the limitation would run from the date of confirmation of the sale. In this regard, the learned counsel appearing for the respondents placed his reliance on {1996 (5) SCC ? 48} PATTAM KHADER KHAN Vs. PATTAM SARDAR KHAN AND ANOTHER, wherein in paragraph Nos.10, 11 and 12 it has been held as follows:-
?10. Now to the spirit of it. A court sale is a compulsory sale, conducted by or under orders of the Court. The title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. The law requires that it does not become absolute until sometime after the sale; a period of at least 30 days must expire from the date of sale before the sale can become absolute. In that while, the sale is susceptible of being set aside at the instance of judgment-debtor on the ground of irregularity in publication or conduct of the sale or on defalcation as regards deposit of money etc., as envisaged in Rules 89 and 90 of Order 21. Where no such application is made, as is the case here, the Court was required, as indeed it did, to make an order, confirming the sale and it is upon such confirmation that the sale becomes, and became, absolute in terms of Order 21 Rule 92. After the sale has become absolute, a certificate is required to be granted by the Court to the purchaser, termed as ?certificate of sale? in Order 21 Rule 94. Such certificate bears the date as on which the sale became absolute. It is on the sale becoming absolute that the property sold vests in the purchaser. The vesting of the property is thus made to relate back to the date of sale as required under Section 65 CPC.
11. Order 21 Rule 95 providing for the procedure for delivery of property in occupation of the judgment-debtor etc., requires an application being made by the purchaser for delivery of possession of property in respect of which a certificate has been granted under Rule 94 of Order 21. There is nothing in Rule 95 to make it incumbent for the purchaser to file the certificate along with the application. On the sale becoming absolute, it is obligatory on the Court though, to issue the certificate. That may, for any reason, get delayed. Whether there be failure to issue the certificate or delay of action on behalf of the Court or the inaction of the purchaser in completing the legal requirements and formalities, are factors which have no bearing on the limitation prescribed for the application under Article 134.
The purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It is true though that order for delivery of possession cannot be passed unless sale certificate stands issued. It is manifest therefore that the issue of a sale certificate is not ?sine qua non? of the application, since both these matters are with the same Court. The starting point of limitation for the application being the date when the sale becomes absolute i.e., the date on which title passed, the evidence of title, in the form of sale certificate, due from the Court, could always be supplied later to the court to satisfy the requirements of Order 21 Rule 95. See in this regard Babulal Nathoolal Vs. Annapuranabai (AIR 1953 Nag 215) which is a pointer. It therefore, becomes clear that the title of the Court auction purchaser becomes complete on the confirmation of the sale under Order 21 Rule 92, and by virtue of the thrust of Section 65 CPC, the property vests in the purchaser from the date of sale; the certificate of sale, by itself, not creating any title but merely evidence thereof. The sale certificate rather is a formal acknowledgement of a fact already accomplished, stating as to what stood sold. Such act of the Court is pristinely a ministerial one and not judicial. It is in the nature of a formalisation of the obvious.
12. Such being the state of law on the subject, we fail to see how the 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.?
10. From the reading of the above decision, it is clear that once the sale is confirmed, it becomes absolute and the certificate is only a evidence of the sale. It is for this reason why the Supreme Court has held that the limitation will start running from the date of confirmation under Order 21 Rule 92 of the Code of Civil Procedure. The auction purchaser, who has parted with his money in purchasing the property ought to have been diligent enough to take the sale certificate within the time prescribed by law. The period of one year limitation is prescribed under Article 134 of the Limitation Act which was substitution of the earlier period of three years prescribed under Article 180 of the Limitation Act, 1908. If the auction purchaser fails to avail the remedy available under the Law, he cannot be allowed to take advantage of his own wrong. May be the only remedy available next is to file a suit for recovery of possession, if otherwise, the suit may be within time.
11. Whether the auction purchaser even got the remedy of filing a separate suit after the amendment to Section 47 of CPC? As per explanation II to Section 47 an auction purchaser is deemed to be a party to the suit in which the decree is passed. Section 47 of C.P.C bars determination of any question relating to the execution, discharge or satisfaction of the decree in a suit and such power is given to executing court. Therefore, a separate suit also cannot be filed by the auction purchaser.
12. Now the applicability of Article 134 & 136 have to be considered. The period of limitation prescribed under the above articles are for different purposes. Article 136 is for the execution of a decree for possession while Article 134 is for delivery of possession of property which is purchased in execution of a decree.
13. The Court auction purchaser cannot be allowed to take advantage of Explanation II of Section 47 wherein he is deemed to be a party to the suit in which a decree has been passed. Delivery of possession pursuant to a purchase in execution of a decree is certainly distinct and different from an application for execution of a decree for possession of property. The former attracts Article 134 and the latter is governed by Act 136.
14. No doubt, it is an established principle of Law that when the third party auction purchaser's interest is involved, his rights have to be protected notwithstanding the fact that the decree is set aside subsequently.
15. In the case of JANAK RAJ Vs. GURDIAL SINGH & ANOTHER {(1967) 2 SCR 77}, the Division Bench comprising Justice Wanchoo and Justice Mitter held that ?The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified.?
16. When a Court auction purchaser, who is the stranger to the decree purchases the property, his interest has to be protected. This is because unless they are assured of the title, the Court auction would not fetch good price and would be detrimental to the parties to the proceedings. Though this principle has been stated and reconfirmed in many of the judicial pronouncements, the Court auction purchaser is expected to be diligent and act within the period of limitation.
17. In the case on hand, the auction purchaser was made a party even in the subsequent suit, which also went upto the appellate stage. On the date of final decree, the sale was confirmed. While so, the revision petitioner ought to have applied for issuance of sale certificate within the period of one year. Being fully aware of the consequences of not applying for the sale certificate within the period prescribed, the Court auction purchaser has taken the risk of losing the property. Article 134 of the Limitation Act prescribes the limitation of one year for an application of delivery of possession by a purchaser of an immovable property in the Court auction. The limitation of one year will be computed only from the date of confirmation of sale. Thus, the period of limitation for delivery of possession of the property produced at the Court sale has been reduced to a considerable extent.
18. In fact, the application is filed in the year 2001 i.e, after 20 years and only Article 134 of the Limitation Act will apply to the application for issuance of sale certificate. The result is that where the application is made beyond the period of limitation, the auction purchaser cannot get any remedy much less who has made the application after 20 long years. It is also not the case of the petitioner that he was kept in dark and he was kept out of the proceedings. He had been taking part in all the other proceedings and also filed several applications to correct the description of the suit property. In such circumstances, the revision petitioner cannot have any indulgence as he has woken up after a long time. The relief sought for by him is barred by limitation. The contention made on behalf of the Court auction purchaser is without substance and the same cannot be sustained.
19. In the result, this Civil Revision Petition is dismissed and the order passed on 30/7/2003 in I.A.No.248 of 2002 in O.S.No.7 of 1993 on the file of the Subordinate Judge, Kumbakonam is confirmed. No costs. Consequently, the connected Miscellaneous Petition is also dismissed. 3/3/2015 mvs.
Index: Yes/no website: Yes/No To The Subordinate Judge, Kumbakonam.
PUSHPA SATHYANARAYANA,J mvs.
C.R.P.NPD (MD) No.2076 of 2003 3/3/2015