Kerala High Court
Joseph@Thampikunju vs Retnamma(Died) on 28 February, 2025
RSA No.661/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
RSA NO. 661 OF 2024
AGAINST THE JUDGMENT&DECREE DATED 24.09.2024 IN AS NO.5 OF 2022 OF
ADDITIONAL DISTRICT COURT II, ALAPPUZHA ARISING OUT OF THE JUDGMENT&DECREE
DATED 30.07.2018 IN OS NO.537 OF 2015 OF PRINCIPAL MUNSIFF, ALAPPUZHA
APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2:
1 JOSEPH@THAMPIKUNJU
AGED 73 YEARS
S/O KURIAN ,ARIKODIYIL HOUSE, PULINCUNNU MURI, PULIKUNNU
VILLAGE, ALAPPUZHA ., PIN - 688508
2 SALIMMA JOSEPH
AGED 69 YEARS
W/O THAMPIKUNJU, ARIKODIYIL HOUSE, PULINCUNNU
MURI,PULINCUNNU VILLAGE,ALAPPUZHA., PIN - 688508
BY ADV ROY CHACKO
RESPONDENTS/RESPONDENTS/PLAINTIFF/3RD DEFENDANT AND LR'S OF PLAINTIFF:
1 RETNAMMA(DIED)
AGED 69 YEARS
D/O KUNJIPENNAMMA, VELLATHUMKAVU, KANNADI PADINJARE
MURI,PULINCUNNU VILLAGE,ALAPPUZHA., PIN - 688508
2 THOMAS XEVIER
AGED 67 YEARS
MANNANKARATHARA,PULINCUNNU,KANNADI,ALAPPUZHA., PIN - 688508
3 PRAMOD KUMAR
AGED 50 YEARS
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S/O RETHNAMMA, VELLATHUMKAVU, KANNADI PADINJARE
MURI,PULINCUNNU VILLAGE,ALAPPUZHA., PIN - 688508
4 PRASEEDA DEVI
AGED 52 YEARS
VELLATHUMKAVU, KANNADI PADINJARE MURI,PULINCUNNU
VILLAGE,ALAPPUZHA., PIN - 688508
5 RENJITHA DEVI
AGED 48 YEARS
VELLATHUMKAVU, KANNADI PADINJARE MURI,PULINCUNNU
VILLAGE,ALAPPUZHA., PIN - 688508
BY ADVS.
K.S.HARIHARAPUTHRAN
PINKU MARIAM JOSE
K.M.FATHIMA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The question involved in this Regular Second Appeal is whether an auction purchaser who failed to take delivery of the property within one year as provided under Article 134 of the Limitation Act,1963 is entitled to file a suit for recovery of possession on strength of his title as per Sale Certificate issued by the Execution Court.
2. It is a settled law that a Second Appeal under Section 100 of the Code of Civil Procedure shall not be admitted when the Substantial Question of Law raised therein is a settled question of law. The very same question which is involved in this Regular Second Appeal was considered by the Full Bench of this Court in Danish Varghese v. Jancy Danish [2021 (1) KHC 1]. Even though the very same question was considered and answered by the Full Bench of the Court, both sides rely on the findings of the Full Bench in support of their contention. The contention of RSA No.661/2024 4 2025:KER:16646 the appellants/contesting defendants is that the Full Bench has laid down the law that a fresh suit for recovery of possession at the instance of an auction purchaser who failed to obtain delivery within the limitation period under Article 134 of the Limitation Act is barred under Section 47 CPC. On the other hand, the contention of the contesting respondents/legal heirs of the plaintiff is that a fresh suit for recovery of possession under Article 65 of the Limitation Act is not barred under Section 47 even if the auction purchaser failed to take delivery within one year as provided under Article 134.
3. The question was referred to the Full Bench by the Division Bench of this Court in view of the apparently conflicting views rendered in different decisions of the Hon'ble Supreme Court and this Court. The Full Bench of this Court considered relevant decisions on the point and answered the reference. Both sides cited the decisions considered by the Full Bench to substantiate their interpretation of the Full Bench. Since the Full Bench has RSA No.661/2024 5 2025:KER:16646 considered the relevant decisions and answered the reference declaring the law on the point, the task of this Court is to ascertain what exactly is the dictum laid down by the Full Bench.
4. When this Regular Second Appeal came up for admission, the contesting respondents appeared through counsel, and both sides advanced arguments in the Appeal. Since this Court was of the view that the matter requires detailed consideration, this Court admitted this Regular Second Appeal on the following Substantial Questions of Law Nos. 1 and 3 formulated in the Second Appeal.
1. Whether on the facts and circumstances of the case, the Trial Court and the First Appellate Court were in error in holding that a Suit for recovery of possession based on title is maintainable at the instance of the Decree holder/ Auction Purchaser after expiry of the period of limitation for getting delivery of property as provided under Article 134 of the Limitation Act, was legally maintainable?
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2. Whether on the facts and circumstances of the case the First Appellate Court was justified in applying the ratio of the Full Bench in 2021 (1) KHC 1 to hold that the suit was maintainable under Article 65 of the Limitation Act?
5. Since both the counsels advanced substantial arguments at the stage of admission, even though the appeal is of the year 2024, I decided to consider the question involved in this Regular Second Appeal since the very same question frequently arises for consideration in several other similar Appeals.
6. The 1st respondent/plaintiff in this appeal is shown as died and the respondents 3 to 5 are the legal heirs of the 1st respondent. Advocate. Sri. K.S.Hariharaputhran entered appearance for the respondents 3 to 5. Since the 2nd respondent who was the 3rd defendant remained exparte before the Trial Court and the dispute is between the appellant and the respondents 3 to 5, notice to the 2nd respondent is dispensed with in this appeal. RSA No.661/2024 7
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7. The parties do not have any quarrel with respect to the essential facts which are necessary for the disposal of this Appeal: The plaintiff had filed O.S.No.498/1994 before the Sub Court, Alappuzha, against the first defendant in the present suit for the specific performance of an Agreement for sale with an alternate prayer for recovery of the advance amount. O.S.No.498/1994 was decreed, allowing recovery of advance amount with interest as per judgment and decree dated 31.10.2000. In execution of the decree passed in O.S.No.498/1994, the plaintiff purchased the plaint schedule property having an extent of 2.25 Acres of paddy land comprised in Sy. No.260/3A, 260/3B of Pulincunnu Village belonged to the first defendant on 09.03.2004. The sale was confirmed on 29.07.2006. The Execution Court issued Ext.A1 Sale Certificate dated 13.08.2012 in favour of the plaintiff. Plaintiff did not take delivery of the plaint schedule property in execution of the decree in O.S.No.498/1994. The present suit is filed for recovery of possession on the strength RSA No.661/2024 8 2025:KER:16646 of the plaintiff's title as per Ext.A1 Sale Certificate and consequential injunction alleging that the defendants 1 and 2 who are the husband and wife are taking hasty preparation to transfer the plaint schedule property in favour of the third defendant by creating certain documents; that they have no right or authority to do so and that being the owner and title holder of the plaint schedule property the plaintiff is entitled to recovery the plaint schedule property from the defendants 1 and
2. The third defendant remained ex parte. Defendants 1 and 2 opposed the suit prayers by filing joint Written Statement contending, inter alia, that the suit is barred by limitation under Article 134 of the Limitation Act and that a fresh suit is barred under Order 21 Rule 95 of the Code of Civil Procedure.
8. Both sides did not adduce any oral evidence. The Sale Certificate in favour of the plaintiff was marked as Ext.A1.
9. The Trial Court decreed the suit allowing recovery of possession of the plaint schedule property from defendants 1 and 2 and RSA No.661/2024 9 2025:KER:16646 granting consequential injunction. Though defendants 1 and 2 filed A.S.No.5/2022 before the First Appellate Court, the same was dismissed, confirming the judgment and decree passed by the Trial Court. Both the Courts concurrently found that the suit for recovery of possession on the strength of the plaintiff's title is maintainable even if the plaintiff did not take delivery of the plaint schedule property in the execution proceedings in the earlier suit O.S.No.498/1994.
10. During the pendency of A.S. No. 5/2022 before the First Appellate Court, the plaintiff died, and hence, respondents 3 to 5 were impleaded as additional respondents therein.
11. I heard Sri. Roy Chacko, the learned counsel for the appellant and Sri.K.S.Hariharaputhran, the learned counsel for the contesting respondents.
12. In support of his argument that the dictum laid down by the Full Bench in Danish Varghese (supra) is that fresh suit for possession by the auction purchaser is barred under Section 47 RSA No.661/2024 10 2025:KER:16646 CPC, the learned counsel for the appellant cited the decisions of the Hon'ble Supreme Court in Harnandrai Badridas v. Debidutt Bhagwati Prasad and Others [AIR 1973 SC 2423] & K.R. Lakshminarayana Rao v. New Premier Chemical Industries [2005 (9) SCC 354] and the Division Bench decision of this Court Velikkal Anjaneyan and Another v. Kanjiroli Abdul Razak and Others [2008(1)KHC 99].
13. In support of his argument that the dictum laid down by the Full Bench in Danish Varghese (supra) is that fresh suit for possession by the auction purchaser is not barred under Section 47 CPC, the learned counsel for the contesting respondents cited the decisions of the Hon'ble Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan and Others [1996 (5) SCC 48] & Balakrishnan v. Malaiyandi Konar [2006(3) SCC 49] and the Single Bench decision of this Court in N.G Aravindakshan Nair and Another v. Binoy Kurian [2017 (3) KLJ 184].
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14. Both the Counsel submitted that the decision of the Hon'ble Supreme Court in Pattam Khader Khan (supra) is referred by the Hon'ble Supreme Court to a larger Bench to decide the issue relating to the starting point of limitation for making an Application under Order 21 Rule 95 CPC, as per the decision of the Hon'ble Supreme Court in Bhasker and Another v. Ayodhya Jewellers [2023 (9) SCC 281]. The said issue does not arise in this appeal, and hence, I am not considering the decision Bhasker (supra) in this appeal.
15. The Full Bench of this Court in Danish Varghese (supra) answered the reference after considering all the decisions cited by both sides before me. On going through the Full Bench decision, I also feel there is a little bit of confusion in understating the correct ratio laid down by the Full Bench.
16. I think it is better to examine the relevant statutory provisions and the case laws considered by the Full Bench before RSA No.661/2024 12 2025:KER:16646 analysing the decision of the Full Bench for a correct understanding of the law laid down by it.
17. Section 12 CPC deals with bar to further suit. Section 12 provides that where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in favour of such cause of action in any court to which the code applies.
18. Section 47(1) of the CPC provides that 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. Even though Section 47 was amended as per Amendment Act 104/1976 which came into force from 01.02.1977, no change was made in Sub-section (1) of Section 47. As per the Amendment Act, Sub-section (2) of Section 47 was omitted, and a new Explanation was added as 'Explanation II', numbering the RSA No.661/2024 13 2025:KER:16646 original Explanation as 'Explanation I.' Explanation II provides that for the purpose of the said Section, a purchaser of a property at a sale in execution of a decree shall be deemed to a party to the suit in which the decree is passed and that all questions relating to the delivery of the possession of such property to such purchaser or his representatives shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of the Section. Only after the inclusion of Explanation II, Section 47 is made applicable to auction purchaser. There could not be a quarrel that before the CPC Amendment Act 1976, it was permissible for the auction purchaser to file a suit and the said suit would not be hit by Section 47(1).
19. The court sale made in execution of the decree is made absolute by confirming the sale under Order 21 Rule 92 CPC. The Court grants Sale Certificate to the purchaser under Order 21 Rule 94 CPC where a sale has become absolute. The RSA No.661/2024 14 2025:KER:16646 auction purchaser who is granted Sale Certificate has to obtain delivery under Order 21 Rule 95 CPC.
20. Article 134 of the Limitation Act,1963 provides that the limitation period for an Application for delivery of possession by a purchaser of immovable property at sale in execution of a decree is one year from the time when the sale becomes absolute.
21. Section 65 CPC deals with the purchaser's title. It provides that where the immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested to the purchaser when the time when the property is sold and not from the time when the sale becomes absolute.
22. Article 65 of the Limitation Act provides for the limitation period of a suit for possession of immovable property based on title. It provides that the limitation period is 12 years starting from the time when the possession of the defendant becomes adverse RSA No.661/2024 15 2025:KER:16646 to the plaintiff. In Clause (c) to Explanation to Article 65, it is provided that for the purpose of the said article where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representatives of the judgment debtor who was out of possession. The said Clause
(c) would indicate that a suit by an auction purchaser in a court sale, where judgment debtor was out of possession, will be governed by Article 65.
23. Rule 347 of the Civil Rules of Practice, Kerala, provides for delivery to the purchaser or decree holder. It provides that where under a decree or in pursuance of a sale certificate, any person is entitled to be put in possession of any property, he may apply for the same, and on the payment of the requisite process fee the court shall order issue of a warrant for delivery of such property unless it thinks fit to issue notice to any person interested in opposing the same.
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24. Let me move on to the case laws considered by the Full Bench.
25. Harnandrai(supra) is a Three Judges Bench decision of the Hon'ble Supreme Court rendered before the CPC Amendment Act 1976. It is useful to extract Para 6 to 8 in the said decision.
"6. S.47 in our view should be construed liberally. As far back in 1892 (1892) 19 Ind App 166 (PC), the Privy Council spoke strongly in favour of putting a liberal construction on S.244 of the Code of Civil Procedure of 1882, which corresponded to present S.47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, 45 Ind App 54 : (AIR 1917 PC
121). If a liberal construction be put upon S.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 RSA No.661/2024 17 2025:KER:16646 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.
7. Speaking of the two conflicting views on this section the learned commentator of the 13th Edition of Sir Dinshaw Mulla's Code of Civil Procedure makes the following observation:
"The cases in which it has been held that an auction purchaser even if he is the decree holder is not a party to the suit, require reconsideration in view of the ruling of the Judicial Committee that such an auction purchaser is a party to the suit." RSA No.661/2024 18
2025:KER:16646 The decision of the Judicial Committee which the learned commentator had in mind is that of Ganapathy v. Krishnamachariar, 45 Ind App 54 : (AIR 1917 PC 121).
8. It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind App 54 : (AIR 1917 PC 121) there has been an amendment of S.47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree holder or not, is unquestionably a party to the suit for the purpose of S.47. Having regard to this, all questions arising between the auction purchaser and the judgment debtor must in our view be determined by the executing Court and not by a separate suit.
26. The Hon'ble Supreme Court has categorically held that all questions arising between the auction purchaser and the judgment debtor must be determined by the Executing Court not RSA No.661/2024 19 2025:KER:16646 by a separate suit. Though not material for the present case, even before the inclusion of Explanation II as per CPC Amendment of 1976, the Hon'ble Supreme Court laid down the law that questions between the auction purchaser and the judgment debtor will also come under Section 47.
27. In the decision of the Hon'ble Supreme Court in Pattam Khader Khan (supra), the Hon'ble Supreme Court was mainly considering which is the starting point of limitation for the limitation period under Article 134. The Hon'ble Supreme Court held that starting point of limitation for the application for delivery is the date when the sale becomes absolute and that sale become absolutes on the confirmation of the sale under Order 21 Rule 92 CPC. Thereafter, the Hon'ble Supreme Court held that on the failure to avail the quicker remedy under Article 134, the law relegates the auction purchaser to the remedy of a suit for possession in a regular way. It is useful to extract Para 13 of the said decision.
RSA No.661/202420
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28. The dictum in the said decision is that the remedy under Order 21 Rule 95 CPC is a quicker remedy for the auction purchaser and on his failure to avail such remedy a suit for possession is maintainable. In other words, twin remedies are available to the auction purchaser.
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29. In Laksmi Narayana Rao(supra), the Hon'ble Supreme Court considered the decision in Harnandrai Badridas(supra) and did not consider the decision in Pattam Khader Khan (supra). The said case arose from a suit for declaration of title and possession filed by an auction purchaser on his failure to take delivery of the property within one year in terms of Order 21 Rule 95 CPC. The Hon'ble Supreme Court held that a separate suit at the instance of an auction purchaser for possession is not maintainable. It is useful to extract Paragraphs Nos.8 & 9 in the said decision.
"8. A bare perusal of the aforementioned provisions would leave no manner of doubt and in particular having regard to the amendments carried in CPC 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 O.21 R.95 CPC and, thus, a separate suit to enforce such a right would, therefore, be not maintainable.RSA No.661/2024
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9. There cannot be any doubt whatsoever that when the decree is satisfied, the execution case comes to an end. Once a decree is satisfied, the question of invoking the provisions of Art.136 of the Limitation Act, 1963 would not arise, inasmuch as a bare perusal thereof would clearly go to show that the same would be attracted only when an application is filed for executing the decree. Art.136 of the Limitation Act is, therefore, not attracted when an application is required to be filed in the execution proceedings for a purpose other than for execution of the decree. Once a decree stands satisfied, the execution proceedings come to an end and, in that view of the matter, a proceeding in the nature of one contemplated under O.21 R.95 CPC is required to be initiated for the purpose of obtaining delivery of possession of the property purchased in court auction by the decree holder. Such an application must be filed within the prescribed period of limitation as provided for under Art.134 of the Limitation Act, 1963. The Schedule appended to the Limitation Act, 1963 having provided for a specific provision prescribing limitation for filing an appropriate RSA No.661/2024 23 2025:KER:16646 application for recovery of possession of any property in possession of the judgment debtor, it is idle to contend that Art.136 of the Limitation Act would apply even in relation thereto. The law enunciated by the majority opinion of the Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar (AIR 1926 Cal 798 : ILR 53 Cal 781 (FB)) has been approved by this Court in Harnandrai case (1973 (2) SCC 467) in the following terms."
30. Thereafter, the Hon'ble Supreme Court considered whether any relief could be granted to the decree holder ex debito justitiae by directing that the Plaint be treated as an application under Order 21 Rule 95 of the CPC. Their Lordships found that such a case could have been taken recourse to if a finding was arrived at by the Trial Court that the suit filed by the plaintiff was within the period of limitation. Finding that the suit was filed after the period of limitation under Article 134, the Hon'ble Supreme Court found that the question of exercising power under ex RSA No.661/2024 24 2025:KER:16646 debito justitiae does not arise. The decision in Lakshminarayana Rao(supra) is on the identical sets of facts as in this Regular Second Appeal which clearly laid down the law that separate suit for recovery of possession is not maintainable by an auction purchaser who failed to take delivery within one year as required under Article 134.
31. In Balakrishnan(supra) also the main question considered by the Hon'ble Supreme Court is regarding the issue with respect to starting point of limitation for the purpose of Article 134. The Hon'ble Supreme Court followed the decision in Pattam Khader Khan(supra) and entered a very same finding which was entered by the Hon'ble Supreme Court in Pattom Khader Khan that on the failure of the auction purchaser to avail quick remedy under Order 21 Rule 95, the law relegates him to the remedy of a regular suit for possession based on title subject to limitation. As per this decision, a separate suit for possession is maintainable.
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32. The Division Bench of this Court considered the question in Vellikkal Anjaneyan(supra). The Division Bench of this Court considered the decision in Harnandrai and Lakshminarayan Rao and Pattam Khader Khan(supra) and categorically held that separate suit at the instance of the auction purchaser who failed to take delivery within the time allowed under Article 134 is barred under Section 47 CPC. It is useful to extract Paragraph No.22 of the said decision:
"22. Based on the discussions as above, we may now formulate our conclusions as follows:
(i) If a specific immovable property is sold in execution of a decree, it is imperative to take delivery of the same to make the execution complete within the time as allowed by Art.134 of the Limitation Act failing which a separate suit for recovery of possession is barred under S.47 of the Code of Civil Procedure.
(see -- 2005 KHC 1556 : 2005 (9) SCC 354).
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(ii) In case no such application is filed within the prescribed time, instead a suit is filed within the said prescribed time, then the Court in appropriate cases can convert the suit into an application under O.21 R.95 CPC ex debito justitiae and grant relief.
(iii) In a given case if actual physical possession cannot be taken, symbolic possession taken under O.21 R.96 will have the same effect as though a khas possession is taken, as against the judgment debtor.
(iv) Effective title to the goods passes on the sale becoming absolute on confirmation. (see -- 1996 KHC 494 : 1996 (2) KLT SN 47 : 1996 (5) SCC 48).
(v) In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit, (see -- 1999 KHC 1094 : 1999 (3) SCC 644 : AIR 1999 SC 1694).
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(vi) If the property sold in execution is the undivided share of the judgment debtor, the decree holder or any one claiming under him, may take symbolic delivery of the same under O.21 R.96 of the Code and will have the same effect of actual possession as against judgment debtor and will be deemed in joint possession thereafter with the other sharers. But in case no such delivery is taken, separate suit for partition as such will not be barred under S.47 of the Code. But if possession becomes relevant in any given case and in the absence of such symbolic delivery, the judgment debtor will be deemed to continue in possession and rights determined accordingly.
(vii) S.47 of the Code provides for relief and bars fresh suit to obtain such relief. Insofar as partition is not a relief to be granted thereunder, there cannot be a bar to institute a fresh suit for such relief of partition."
33. After formulating the above conclusions, the Division Bench of this Court further reiterated that Section 47 will not be a bar to institute a suit for partition when undivided share of an immovable property is sold in a court auction and the auction RSA No.661/2024 28 2025:KER:16646 purchaser though entitled to apply for symbolic delivery failed to take such symbolic delivery.
34. In N.G. Aravindakshan Nair(supra) the learned Single Bench of this Court considered the effect of Section 47 CPC in the light of the decisions of the Hon'ble Supreme Court in Harnandrai Badridas and Pattam Khader Khan and Balakrishnan (supra). The learned Single Judge distinguished the decision of the Hon'ble Supreme Court in Harnandrai by holding that the said decision was pronounced before the CPC Amendment Act 1976. Thereafter the learned Single Judge followed the decisions of the Hon'ble Supreme Court in Pattam Khader Khan and Balakrishnan (supra) and held that the contention that suit is barred under Article 134 by virtue of the provisions in Section 12 and Section 47 and also that in Order 21 Rule 95 CPC cannot be accepted by this Court.
35. Bearing in mind the aforesaid relevant statutory provisions and precedents, let me examine as to how the aforesaid decisions RSA No.661/2024 29 2025:KER:16646 were considered by the Full Bench and what are the conclusions arrived at by the Full Bench.
36. Both the counsel generously assisted me by taking me through the Full Bench decision in Danish Varghese (Supra) again and again in order to have a clear understanding of the law laid down by the Full Bench. Counsel on both sides are unanimous that there should be clarity of the answers of the Full Bench to the reference, by explaining the same.
37. The Full Bench of this Court considered three points as 'A', 'B' and 'C'. in the decision. They are:
A. What is the starting point of one year limitation period prescribed under Art.134 of the Limitation Act?
B. Is it mandatory for the auction purchaser to take delivery of the property purchased by him in court auction?
C: If the auction purchaser fails to take delivery of the property within the limitation period as above, is he entitled to file a fresh suit? and if RSA No.661/2024 30 2025:KER:16646 so, what are its limits and appropriate relief which the auction purchaser is entitled to seek?
38. As far as question of law argued before me, the decision of the Full Bench under Point No.C alone is relevant. But while considering Point No.B the Full Bench held that delivery of possession actual or symbolic of the property sold in execution by the auction purchaser is the natural and nominal culmination of sale of immovable property in execution; that in the case of sale of undivided right delivery can be effected by handing over symbolic possession of undivided right purchased by the auction purchaser; that it is imperative on the part of the decree holder to take possession of the property auctioned by him and that if he fails to get possession through execution court his relief under Order 21 CPC is lost though his title over the property sold subsists. The above finding of the Full Bench indicates that delivery is part of execution and that if the auction purchaser fails to take possession through the Execution Court RSA No.661/2024 31 2025:KER:16646 within one year as provided under Article 134, his title will not be lost.
39. Then comes to the next question which is considered in Point No.C by the Full Bench whether the Auction Purchaser is entitled to file a fresh suit on the strength of his title.
40. In Paragraph No.26, the Full Bench considered the decision of the Hon'ble Supreme Court in M.V.S. Manikayala Rao v. Narasimhaswami [AIR1966 SC470] and it is found that though the referred question was not the subject matter in the said case the said decision indirectly indicate that a suit for partition may lie if the same is not barred under Section 47. It would indicate that in spite of the bar under Section 47, some types of suits are maintainable.In paragraph No.27, the Full Bench considered the decision of the Hon'ble Supreme Court in Pattam Khader Khan (supra) and found that the Three Judges Bench decisions of the Hon'ble Supreme Court in Manikayala Rao (supra) and Harnandrai (supra) were not referred to. In Paragraph No.29, RSA No.661/2024 32 2025:KER:16646 the decision of the Hon'ble Supreme Court in Lakshminarayana Rao (supra) is considered and found that separate suit is not maintainable. In Paragraph No.30 the Division Bench decision of this Court in Anjaneyan (supra) is considered and found that it followed the decision of the Hon'ble Supreme Court in Lakshminarayana Rao (supra). In paragraph No.31 the Single Bench decision of this Court in Aravindakshan Nair(supra) is considered.
41. In Paragraph No.33, the Full Bench specifically found that the question whether the auction purchaser who fails to file an application under Order 21 Rule 95 is entitled to file a fresh suit was not the subject matter directly in issue in Pattam Khaderkhan (supra) and it was neither considered incidentally also. The Full Bench entered in categorical finding that the observation in Paragraph No.13 of Pattam Khader Khan relegating the party to the remedy of filing fresh suit in case of failure to file an application for delivery seems to be a passing RSA No.661/2024 33 2025:KER:16646 reference. In paragraph No.34 the Full Bench specifically entered a finding that the observation in Pattam Khader Khan(supra) which was followed in Balakrishnan (supra) as a precedent was without reference to the spirit of Sections 12 and 47 CPC, provision relating to sale as contemplated under Order 21 CPC and Amendment to Article 134. It is further held that if the reliefs which could be availed under Order 21 Rule 95 is barred by limitation same relief can be sought thereafter by way of a fresh suit will make Section 47 redundant in such cases. The Full Bench specifically held that Pattam Khader Khan(supra) cannot be considered to lay down binding precedent of law and that the view laid down in Lakshminarayana Rao and Manikayala(supra) should prevail regarding the claims which arise from the execution, discharge satisfaction of the decree.
42. Then Full Bench considered about the claims/disputes outside the scope of Section 47 CPC. Those claims and disputes could RSA No.661/2024 34 2025:KER:16646 only be those which do not relate to execution, discharge and satisfaction of the decree.
43. In Paragraph No.40, the Full Bench entered a finding that if a narrow interpretation is given to the word 'delivery of possession' occurring in S.47 and order 21 Rule 95 what is prohibited by filing a separate suit is only an attempt to seek delivery of possession as a sequel to court sale and not a suit for possession on the strength of title. In Paragraph No. 41, the Full Bench referring to the decision Lakshminarayana Rao(supra) expressed that the question considered therein was whether the provision of S.136 of the Limitation Act would apply. After referring to Article 65 of the Limitation Act, the Full Bench held in Paragraph No. 43 that the law does not prevent the auction purchaser in filing a suit for recovery of possession of the property on the strength of title in terms of Article 65 of the Limitation Act, which apparently provides for a larger period of limitation. The Full Bench also referred to Explanation (c) of RSA No.661/2024 35 2025:KER:16646 Article 65 which takes care of an instance where a suit is filed by a purchaser at the sale in execution of the decree in case where the judgment debtor was out of possession as on the date of sale.
44. The aforesaid discussion will reveal that the Full Bench followed Lakshminarayana Rao(supra) and not Pattam Khader Khan(supra). The Full Bench considered about the claims/disputes outside the scope of Section 47 CPC, while finding that separate suit on the strength of title is maintainable. In such case, the suits found to be maintainable by the Full Bench could only be the suits for recovery of possession by auction purchaser, which is not prevented by Section 47. Those are the suits referred in Clause (c) of Explanation to Article 65 of the Limitation Act. The suits which are covered under Clause(c) of Explanation to Article 65 are the suits where the judgment debtor was out of possession on the date of sale. In other words, the suits which are found to be maintainable in RSA No.661/2024 36 2025:KER:16646 Paragraph No.43 are the suits not against the judgment debtor who has exclusive possession of the property, but the suits against the persons who are in possession of the property as on the date of sale other than the judgment debtor and the suits at the instance of an auction purchaser who could take only symbolic delivery of the property. The Full Bench did not lay down a law an absolute legal proposition that a suit against the judgment debtor under Article 65 of the Limitation Act, is permissible if the auction purchaser fails to obtain delivery by filing application within one year as provided under Article 135. The suits which are not barred under Section 47 are covered under Clauses (iii), (vi) & (vii) of Paragraph 22 of the Division Bench decision of this Court in Vellikkal Anjaneyan(supra), i.e, cases in which undivided share or symbolic delivery under Order 21 Rule 96 is taken since actual possession could not be taken.
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45. In paragraph 44 the Full Bench expressed the view that the said right will depend upon the pleadings of the parties and the respective contentions in this regard. It is reiterated that as far as an auction purchaser is concerned he can seek delivery of possession by approaching the execution court and not by a separate suit. It is true that the Full Bench expressed that in the decision in Lakshminarayana Rao(supra), the Hon'ble Supreme Court has not considered whether a suit for possession on the strength of title would be maintainable or not and that their Lordships felt that if the view expressed is not possible the auction purchaser who has a valid title will not be in a position to recover possession of the property at any point of time and its title will become a dead paper. The Full Bench followed the decisions in Lakshminarayana Rao of the Hon'ble Supreme Court and Anjaneyan of the Division Bench of this Court. It is further held that it is difficult to treat the last sentence in Paragraph 13 of the decision of Pattam Kadher khan (which RSA No.661/2024 38 2025:KER:16646 states that on failure to avail quicker remedy the law relegates the auction purchaser to the remedy of a suit for possession in a regular way) as an absolute proposition, in view of the teeth of clear, unequivocal and unambiguous provisions contained in S.47 against filing of a suit by an auction purchaser to recover possession of the property purchased by him. The Full Bench held that in relation to claims which do not arise in relation to discharge, satisfaction or execution of decree and a suit for possession on the strength of title which falls within Article 65 of the Limitation Act, a fresh suit may be maintainable. The said finding would indicate that a suit under Article 65 of the Limitation Act, on the strength of title is maintainable. Such suit could only be a suit coming under Clause (c) of Explanation to Article 65. This is very much clear from the succeeding sentences to the above finding that in case of a person who procures undivided right over the auctioned property, his right under Order 21 CPC terminates with delivery of symbolic RSA No.661/2024 39 2025:KER:16646 possession of the undivided right and that it will not preclude him from seeking partition of the property by a suit.
46. The Full Bench concluded by answering the reference holding that on failure of an auction purchaser to apply for delivery as provided under Order 21 Rule 95 CPC, his right to file a fresh suit for enforcing delivery in execution is barred and that suits which do not offend S.47 CPC and suits for possession on the strength of title deed including purchase certificate that fall within the frame work of Article 65 of the Limitation Act, would be maintainable. By this conclusion, the Full Bench has made it clear that only two categories of suits alone are maintainable in view of the bar under S.47 CPC. The first one is that the suits which do not offend S.47 , i.e; if the suit does not relate to discharge, satisfaction or execution of the decree. Secondly, suit for possession on the strength of title deed including Sale Certificate within the frame work of Article 65. The Full Bench itself has made it clear that if a fresh suit for recovery of RSA No.661/2024 40 2025:KER:16646 possession is permitted that will virtually make S.47 CPC redundant. Thus the suits within the frame work of Article 65 of the Limitation Act, which is referred by the Full Bench can only be the suit covered under Clause (c) of Explanation to Article 65 and not a regular suit for possession against the judgment debtor himself who is having exclusive possession over the property.
47. The learned counsel for the contesting respondents contended that a suit for recovery of possession on the strength of title does not come under the category of discharge, satisfaction or execution of the decree and the suit on the strength of Sale certificate under Article 65 is maintainable and the same is not barred under S.47. S.47 refers to only execution, discharge and satisfaction of the decree. Obtaining delivery of possession is a part of execution. Delivery of possession is obtained under Order 21 Rule 95 in the case of actual possession and under Order 21 Rule 96 in the case of symbolic possession. Then a question arises whether obtaining delivery of possession and RSA No.661/2024 41 2025:KER:16646 recovery of possession is one and the same. The purpose of both these proceedings, i.e; the proceedings under Order 21 Rule 95 CPC and the suit for recovery of possession is to obtain possession of the property. In case of suit for recovery of possession also the possession is obtained by obtaining delivery as per Rule 347 of the Civil Rules of Practice. The suit for recovery of possession also ends in taking delivery of the property through execution proceedings. Hence, the suits for recovery of possession under Article 65 of the Limitation Act by the auction purchaser who failed to take delivery, other than coming under clause (c) of Explanation to Article 65 is barred under Section 47 CPC.
48. The CPC Amendment Act of 1976 did not make any change to Section 47(1).Only change made by the Amendment by inclusion of Explanation II is that the auction purchaser in the court sale is also treated as a party to the said. Hence the suit at the instance of the auction purchaser is barred only with effect RSA No.661/2024 42 2025:KER:16646 from the date of amendment. The Three Judges Bench decision in Harnandrai Badridas (supra) has specifically laid down the law that all questions arising between the auction purchaser and the judgment debtor must be determined by the Executing Court and not by a separate suit following the decision of the Privy Council in Ganapathy v. Krishnamachariar [AIR 1917 PC 121] interpreting Section 47 CPC. Thus, even before the Amendment, the Hon'ble Supreme Court laid down the law that Section 47 is applicable to auction purchaser also. Since there is no change in S. 47 (1) as per the CPC Amendment Act of 1976, the Three Judges Bench decision of the Hon'ble Supreme Court in Harnandrai Badridas (supra) still governs the field. It could not be ignored holding that the same was rendered prior to the CPC Amendment Act of 1976.
49. In the Limitation Act, 1908, the limitation period for filing an application for delivery was three years under Article 180. The RSA No.661/2024 43 2025:KER:16646 said period was reduced to one year under Article 134 of the Limitation Act, 1963. It is seen from the discussion in the judgment in Balakrishnan (supra) that the period of three years was reduced to one year for finalising the execution as quickly as possible by providing a quick forum to the auction purchaser to ask for the delivery of possession of the property purchased within that period from the date of sale. Article 134 only provides limitation for filing of an application for delivery and not providing the period for completing the proceedings to obtain delivery. If the reduction of limitation period was to protect the interest of the auction purchaser, now it has turned detrimental to the interest of the auction purchaser in view of the mandate under Section 47 of CPC. Under Article 65, the limitation period of 12 years therein starts only when the possession of the defendant becomes adverse to the plaintiff, otherwise the limitation period of 12 years will not start. So in the absence of adverse possession by the defendant, there is no limitation period for a RSA No.661/2024 44 2025:KER:16646 suit for possession on the strength of title. It would be an injustice if the auction purchaser is not permitted to file a suit for possession on the strength of title within the limitation period in Article 65 against the judgment debtor to obtain possession in case he fails to obtain delivery within one year, like any other title holder. The remedy under Order 21 Rule 95 CPC is to be construed as a quicker remedy which should not bar the regular remedy of filing suit for recovery of possession. The Sale Certificate issued under Order 21 Rule 94 CPC is also a valid document of title just like any other title. It has more sanctity as it is issued by a Court. Hence, it is an injustice to treat the Sale Certificate separately, providing a separate lesser period of limitation when compared to the other title deeds. Since the law is laid down by the Full Bench of this Court in Danish Varghese (supra) resolving the conflict of judicial opinions in different decisions, I am bound to follow the said Full Bench decision. I RSA No.661/2024 45 2025:KER:16646 have only explained the true dictum laid down by the Full Bench, nothing more or nothing less.
50. The present suit is filed for recovery of possession by the plaintiff who was an auction purchaser in the execution proceedings in the earlier suit in O.S No. 498/1994 of the Sub Court, Alappuzha who did not obtain delivery of the property in the execution proceedings. The present suit does not come within the scope of clause (c) of Explanation to Article 65 of the Limitation Act and hence the same is clearly barred under S.12 and S.47 CPC.
51. In view of the aforesaid discussions, I answer the Substantial Question of Law No.1 in the affirmative and the Substantial Question of Law No.2 in the negative, both in favour of the appellant and against the respondents.
52. Accordingly, I allow this Regular Second Appeal without costs setting aside the judgment and decree passed by the Trial Court which is confirmed by the First Appellate Court and dismissing RSA No.661/2024 46 2025:KER:16646 O.S.No. 537/2015 filed by the plaintiff before the Principal Munsiff's Court Alappuzha.
Sd/-
M.A.ABDUL HAKHIM JUDGE jma