Andhra HC (Pre-Telangana)
Vegendla Subba Rao vs Puvvada Srinivasa Rao And Ors. on 13 July, 2005
Equivalent citations: AIR2005AP449, 2005(5)ALD260, 2005(6)ALT106, AIR 2005 ANDHRA PRADESH 449, (2006) 2 CIVILCOURTC 32, (2005) 5 ANDHLD 260, (2005) 6 ANDH LT 106
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This second appeal arises out of a decree passed by the Court of Principal Junior Civil Judge, Ongole, in O.S. No. 79 of 1991, which in turn, was confirmed by the Court of IV Additional District Judge (Fast Track Court), in A.S.No. 68 of 1999. The 2nd defendant in the suit is the appellant.
2. The relevant facts are as under:
The 3rd respondent was the owner of the suit schedule house in an area of 1440 Sq. feet. He sold it through a sale deed dated 29-8-1963 (Ex.A-8), to the 2nd respondent. The appellant purchased the said property under two separate sale deeds, dated 24-9-1964 (Ex.P-1) and 10-12-1991 (Ex.B-2) from the 2nd respondent. He claims to have added some more constructions on the site in the year 1972. The 3rd respondent filed O.S. No. 247 of 1972 in the Court of District Munsif, Ongole, for recovery of balance of consideration under Ex.A.8, from the 2nd respondent. Since the property was purchased by the appellant herein, in the meanwhile, he too was impleaded as defendant No. 2 in that suit. The suit was decreed ex parte on 17-7-1972. The suit schedule property was attached and thereafter, brought to sale, on 14-6-1983.
The 1st respondent emerged as the successful bidder. The sale in his favour was confirmed on 16-8-1983 and the sale certificate, Ex.A-1, was issued on the same day.
3. The 1st respondent filed the present suit, i.e. O.S. No. 79 of 1991 on 25-9-1991, for declaration of title and for recovery of possession of the property and for mandatory injunction, for removal of certain new constructions, said to have been brought about by the appellant and the 2nd respondent. The 1st respondent narrated the manner in which, he acquired the property, and tried to explain the delay, in initiating steps to recover possession of the land. The suit was resisted mainly by the appellant. The plea as to the very maintainability of the suit was raised. It was alleged that the suit is barred under Section 47 of C.P.C. It was also urged that the only way, in which, the 1st respondent could have secured the possession if all, was by filing an application under Rule 95 of Order 21, and since the limitation therefor expired long back, the suit was not maintainable. Several subsidiary contentions were also urged. The Trial Court decreed the suit, and the decree was affirmed in the appeal.
4. Sri V.L.N.G.K. Murthy, learned Counsel for the appellant submits that a separate suit by an auction-purchaser, in an execution sale, is not maintainable, and is barred under Section 47 of C.P.C. By placing reliance upon several judgments of the Supreme Court and High Courts, he submits that Order 21 C.P.C., prescribes an exhaustive procedure for execution, commencing from attachment of the property, to delivery of possession to the auction-purchaser, and it is impermissible to file a separate suit for any relief that can be claimed under Order 21 C.P.C. He draws analogy from Rules 58 and 101 of Order 21, which prohibit filing of separate suits for the corresponding remedies. His second contention is that the prayer for removal of construction is vague and a mandatory injunction cannot be granted on the strength of such pleadings.
5. Sri M.R.S. Srinivas, learned Counsel for the 1st respondent submits that his client acquired title in the suit schedule property, on the basis of the sale certificate issued by the Executing Court, and it is always open to him to secure the possession of the property by filing a suit, or through other step permissible in law. Learned Counsel contends that though Rule 95 of Order 21 is one of the remedies, it is not exclusive and exhaustive, nor does it bar the filing of a fresh suit. He submits that with the finalization of sale, the execution proceedings, almost assumed finality and hardly there would be an occasion for a judgment-debtor to raise any objection for delivery of possession. He further contends that the appellant is very much a party to the decree in O.S.No. 247 of 1972 and that he cannot raise any objection for delivery of possession. As regards the relief of mandatory injunction, learned Counsel submits that the construction in the suit schedule property was made in the recent past, and if for any reason it is incompatible for the Court to grant the relief of mandatory injunction, his client is prepared to take the property, of its present condition. He too places reliance upon certain decided cases.
6. The appellant purchased the suit schedule property from the 2nd respondent under Exs.B-1 and B-2. The property was initially held by the 3rd respondent and was purchased by defendant No. 2, under Ex.A-8 in 1963. It is somewhat curious, that the 3rd respondent filed a suit in the year 1972 i.e. 9 years after the sale, for recovery of the alleged balance of consideration under Ex.A-8. The question as to how he executed the sale deed without receiving the entire consideration is certainly germane. However, that is out side the scope of this second appeal. By the time the suit was filed, the property was purchased by the appellant herein. So, he was impleaded as the 2nd defendant in that suit. For one reason or the other, the suit came to be decreed ex parte, almost instantly, on 17-7-1972. The decree became final.
7. It was almost after another decade, that the 1st respondent filed E.P.No. 201 of 1981. The decree had a charge against the suit schedule property. In the sale held on 14-7-1983, the 1st respondent emerged as the successful bidder. One month thereafter, the sale was confirmed on 16-8-1983, and a sale certificate, Ex.A-1, was issued to him on the same day. Eight years thereafter, the 1st respondent filed the present suit, for the relief of declaration of title, recovery of possession and mandatory injunction. As observed earlier, the suit was mainly opposed on the grounds of maintainability, and in the context of the relief of mandatory injunction.
8. Section 47 of C.P.C. mandates that all questions, arising between the parties to the suit, in which the decree was passed, or the persons claiming through them, shall be determined by the Executing Court, and not by a separate suit. It reads as under:
"Questions to be determined by the Court executing decree. (1) All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) (Omitted by Act 104 of 1976) (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I: For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation-II: (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
9. This provision has been the subject-matter of interpretation in number of cases. It does not call for any fresh interpretation. At the most what has already been said, needs to be restated. Sub-section (1), in its nascent form, was capable of being interpreted in many ways. Much depended on the meaning to be ascribed to the expressions "relating to execution" and "discharge or dissatisfaction of decrees". The process of execution itself is so diverse in its nature that it is almost impossible to stipulate a uniform pattern for all categories of decrees, or to expect similar outcome. A serious area of controversy exists as regards the rights of an auction-purchaser, in this regard.
10. It was successfully argued in many cases that Section 47 CPC does not take in its fold, an auction-purchaser, since he is not a party to the suit in which the decree was passed, nor a representative of the parties. For example, a Full Bench of the Allahabad High Court in Bhagwati v. Banwari Lal and Ors., (1908) ILR All. 82, held that an auction-purchaser can maintain a separate suit to recover the possession of the property purchased by him and the bar contained in Section 47, C.P.C. as it then existed, does not operate against him. A Full Bench of this Court in A. Venkataseshayya and Ors. v. A. Virayya and Ors., AIR 1958 AP 1 (FB), held that it is always open to a person who is not a party to the decree, to challenge the same, in a separate suit. Another Full Bench of Patna High Court in Tribeni Prasad Singh and Ors. v. Ramasray Prasad Chaudhari and Ors., AIR 1931 Patna 241, took the view that an auction-purchaser has two fold remedy to obtain possession of the property purchased, viz. through an application under Rule 95 or 96 of Order 21, or by a separate suit. The claims of auction-purchaser were permitted to be adjudicated through separate suits, obviously because the bar contained in Section 47 C.P.C., does not operate in relation to his claims. It was faced with this uncertainty, that the Parliament undertook amendment of this section, from time to time. Explanation II was added through Act 104 of 1976, had resolved this controversy.
11. The explanation clarifies two aspects. First is that through the process of legal fiction, the purchaser in an execution sale, is treated as a party to the suit, within the meaning of Section 47 C.P.C. The second is that the question relating to delivery of property purchased in an auction sale, is deemed to be the one, relating to execution. With this, the freedom of an auction-purchaser, to work out his remedies, in relation to delivery of property stood curtailed, and restricted to the one, of seeking determination of the same in the same suit, meaning thereby, in the same execution proceedings. Filing of separate suit for this purpose is barred.
12. Sri M.R.S. Srinivas, learned Counsel for the respondents, vehemently contended that it is always open to an auction-purchaser to choose to the remedies of filing an application under Rule 95 or 96 of Order 21 C.P.C., or to file a separate suit. For this proposition, he relied upon a judgment of the Full Bench of Patna High Court and a judgment rendered by the Supreme Court.
13. It is true that in Tribeni Prasad Singh's case (supra), a Full Bench of the Patna High Court, after thoroughly discussing the numerous judgments on the point, held that the auction purchaser is a third party to the suit as well as the execution proceedings, and that he has a two fold remedy, to obtain the possession of the property purchased in the auction, viz. to file an application under Rule 95 or 96 of Order 21 C.P.C., or to file a separate suit. It was further observed that the two remedies are concurrent and not exclusive of each other. The Full Bench proceeded to observe that a claim for recovery of possession does not by itself raise a question relating to execution and discharge or satisfaction of the decree. However, it needs to be observed that this exactly was the situation that was remedied by amendment to Section 47 C.P.C. With the addition of Explanation-II to Section 47, the principle laid down by the Patna High Court referred to above, becomes inoperative.
14. It is rather difficult to discern from the judgment of the Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan and Anr., , that it was laid down as a principle that it is open to an auction-purchaser to seek delivery of possession of the property through a separate suit. The issue involved in that case was as regards the starting point of limitation for the purpose of filing an application for delivery of possession under Rule 95 of Order 21. The controversy was as to whether it should be the date on which the executing Court confirmed a sale, or the date of issuance of the sale certificate.
15. In that case, the Supreme Court, the sale conducted by the Court, in an execution, was confirmed on 7-8-1984. For one reason or the other, the sale certificate was not issued till 9-11-1989. The record does not disclose that the delay was on account of pendency of any appeal, or revision. The auction purchaser filed application for recovery of possession of the property, under Rule 95 of Order 21, within one year from the date of issuance of the sale certificate. The executing Court rejected the same, as barred by limitation. This Court took the view that the starting point for computation of period of limitation in this regard is the date of issuance of sale certificate. Reliance was placed upon the judgment of the Privy Council in Chandra Mani Saha v. Anarjan Bibi, AIR 1934 PC 134.
16. In the appeal, the Supreme Court analysed the facts in Chandra Mani Saha's case (supra) and observed that as a principle it was not laid therein that the period of limitation for the purpose of filing application for delivery of possession starts from the date of issuance of sale certificate. In the case before the Privy Council, the sale became absolute on 22-4-1924. An appeal preferred against it was dismissed on 17-3-1927. The sale certificate was issued on 19-5-1928 and the application under Rule 95 of Order 21 was filed on 10-9-1928. It was a coincidence that the date of filing of the application was within one year from the date of dismissal of appeal viz. 17-3-1927 and date of issuance of sale certificate, i.e. 19-5-1928. While this Court understood the Privy Council as laying down the principle that limitation starts running from the date of issuance of certificate, the Supreme Court took the view that it was the date of dismissal of the appeal filed against the order confirming the sale, in the facts of that case.
17. The Supreme Court ultimately held that the application filed under Rule 95 of Order 21 was barred by limitation. It took note of the intention of the legislation, in reducing the period of three years of limitation under Article 180 of Limitation Act, 1908, to one year under Article 134 of the Limitation Act, 1973. After discussing this aspect, the Supreme Court observed that the auction-purchaser can avail the remedy of filing suit for possession. It is relevant to extract Paragraphs 12 and 13 in this regard.
"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 tide, the same can only be complete when evidenced by a sale certificate issued under Order 21 Rule 94, and that unless the sale certificate is issued, limitation cannot start for the purpose of an application under Order 21 Rule 95 CPC, vis-a-vis, Article 134 of the Limitation Act, 1963. The High Court, in our view erred in holding that it is only from the date when a sale certificate is issued, that the limitation starts running. Such view of the High Court would not only cause violence to the clear provisions of Article 134 of the limitation Act but have the effect of unsettling the law already settled.
13. There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one-year limitation, now prescribed under Article 134 of the Limitation Act, 1973, in substitution of a three-year period prescribed under Article 180 of the Indian Limitation Act of 1908, is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction-purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail of such quick remedy the law relegates him to the remedy of a suit for possession in a regular way."
18. The purport of Explanation-II of Section 47 C.P.C. was not canvassed before the Supreme Court, obviously because the occasion did not arise. In the teeth of clear, unequivocal and unambiguous prohibition contained in Section 47 against filing of a suit by an auction-purchaser to recover the possession of the property purchased by him, it is difficult to treat the last sentence in Paragraph 13 of the judgment as an absolute proposition of law, with great respect to the Hon'ble Supreme Court. The permissibility of filing a separate suit in spite of the bar contained in the Explanation n of Section 47 C.P.C. did not fall for consideration before their Lordships. If such situation existed, naturally the said observation would have assumed the status of the law of the land.
19. In a system of law where the principle of stare decis is followed, a judgment of a superior Court becomes a precedent, for what is decides. An observation, touching on an aspect which was not at issue and which does not accord with statute law, cannot arm an inferior Court to ignore the mandate under the specific provisions of the enacted law. It can be treated as obiter dicta, as distinguished from the ratio decidendi. Further, what is prohibited to be done directly, cannot be permitted to be done indirectly. When law stipulates that the only method, through which an auction-purchaser can recover the property purchased by him, is by filing an application under Rule 95 of Order 21 CPC, the 1st respondent cannot be permitted to avail that relief indirectly, after it became barred.
20. In Shan Zahoor v. Vijayawada Municipal Corporation, , this Court explained the distinction between ratio decidendi and obiter dicta as under:
"A judgment of a Court operates as a precedent only for what it decides, known as ratio decidendi and not for its general or casual observations, called obiter dicta. However, discerning or culling out the ratio deddendi of judgment is by no means a simple or easy task. Many a time, it would be difficult to state, with a semblance precision as to which portion of the judgment represents the ratio deddendi and which, the obiter dicta. The angle from which a precedent is examined makes a substantial difference. In the process of answering the main issue or dealing with the core of the dispute, passing observations are bound to be made by the Court, here and there. Once the central issue involved in the case is identified, the view expressed by the Court on that issue deserves to be treated as the ratio deddendi. The observations in the process of reasoning, or disposal of inconsequential and subsidiary issues, fall into the category of obiter dicta"
Support was derived from the treatises written by jurists like Sir John Salmond, Edgar Bodenheimer and C.K. Allen, for the above statement of law.
21. For the foregoing reasons, the second appeal is allowed, and the decree granted by the Trial Court in O.S. No. 79 of 1991, affirmed by the Appellate Court in A.S. No. 68 of 1999, is set aside. There shall be no order as to costs.