Case Number – Civil Appeal No. 4204 of 2007
Bench – R.K Agrawal and R. Banumathi, J.J (Supreme Court)
Laws Involved –
- Limitation Act
- Civil Procedure Code
- Constitution of India
Judgement Date – January 11, 2017
Factual Background: –
- This appeal arises out of order passed by the High Court of Kerala at Ernakulam allowing the revision in CRP No.894 of 2005 dated 2nd January, 2006 and thereby dismissing the appliance filed by the appellant under Order XXI Rule 95 C.P.C. on the bottom that the appliance is barred by limitation and declining direction for delivery of possession of the immovable property purchased within the court auction to the appellant.
- The appellant filed a suit for realisation of the suit claim and therefore the said suit was decreed for a sum of Rs.2,72,100/- alongside interest. In execution of the decree, the property of respondent was auctioned on 27th October, 2001 and therefore the same was purchased by the appellant. The appellant purchased the property to an extent of 1 acre and 50 cents comprised in Survey No.458/1 of Parassala Village alongside the building situated therein. The sale was made absolute on 1st June, 2002. Sale certificate was issued to the appellant on 17th March, 2003. In the meanwhile, the respondent filed an application to set aside the auction sale (Order XXI Rule 90 C.P.C.) and also another application for appointment of the Commissioner to value the property. Both the applications came to be dismissed by the executing court. Being aggrieved by the order dismissing the Commissioner’s application (E.A.No.77/2002), the first respondent/judgment-debtor filed revision before the High Court in C.R.P.No.2829/2002 in which the High Court has granted stay of further proceedings in the execution petition. The Civil Revision Petition came to be dismissed on 9th July, 2003.
- An appeal is filed on ground that, application is barred by limitation and declining direction for delivery of possession of immovable property purchased in Court auction sale to Appellant. Challenging impugned order, it was submitted that, Court auction sale does not become absolute on passing of a mere order of confirmation of sale as enjoined by Order XXI Rule 92(1) of C.P.C. but it becomes absolute only on termination of proceedings initiated to set aside the order confirming the sale.
Issue Raised: –
The application so filed is barred by limitation and declining direction for delivery of possession of the immovable property purchased in the court auction sale to the appellant.
Argument Raised: –
- Challenging the impugned order, Learned counsel for the appellant submitted that the court auction sale does not become absolute on the passing of a mere order of confirmation of sale as enjoined by Order XXI Rule 92(1) C.P.C. but it becomes absolute only on the termination of proceedings initiated to set aside the order confirming the sale. It was further submitted that the steps taken by the judgment-debtor to set aside the court auction sale were pending consideration before the High Court in C.R.P.No.2829/2002, which proceedings came to be terminated only on 9th July, 2003 and hence the appliance filed by the appellant under Order XXI Rule 95 C.P.C. on 30th August, 2003 was well within the amount of limitation as stipulated under Article 134 of the Limitation Act, 1963.
- Advocate for the respondent presented that according to the decision in Ganpat Singh versus Kailash Shankar and Others, an application documented by the auction buyer under Order XXI Rule 95 C.P.C. for conveyance of ownership of property would be secured by Article 134 of the Limitation Act and within the current case restriction will begin from first June, 2002 for example the date of affirmation of offer and subsequently the application documented on 30th August, 2003 is beyond the time of constraint. Putting dependence on Pattam Khader Khan versus Pattam Sardar Khan and Anr., it had been additionally contended that for documenting application by the closeout buyer for conveyance of ownership (under Order XXI Rule 95 C.P.C.), issuance of offer endorsement isn’t the sine qua non and hence the appealing party can’t contend that the application recorded on 30th August, 2003 is inside the time of impediment. The learned senior counsel further presented that the supreme court has noticed the way that the first respondent has just saved the entire sum and since the declaration holder Corporation itself is the bartering buyer, this is definitely not a fit case justifying impedance in exercise of unprecedented ward under Article 136 of the Constitution of India, notwithstanding the leave previously conceded.
Judgement: – the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained.
The case so presented stated that Language of Order XXI Rule 95 of C.P.C is indicative that application for delivery of possession of property purchased in Court auction can be filed where “a certificate in respect thereof has been granted under Rule 94 of Order XXI of CPC. In terms of Article 134 of Limitation Act, 1963, an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree has to be filed within a period of one year from the date when the sale becomes absolute. Sale could not have become absolute till proceedings in the revision in C.R.P.No.2829/2002 was over and revision was disposed of. Judgment-debtor, had filed two applications; to set aside sale alleging that, property was sold for a lower price as a result of which substantial injury was caused to him and another application for appointing Advocate-Commissioner to assess value of the property. As against order dismissing application, judgment-debtor has filed revision. So long as said revision was pending, Court auction sale was yet to become absolute. Till revision was disposed of in one way or the other, sale was yet to become absolute. In Article 134 of Limitation Act, legislature has consciously adopted expression “when sale becomes absolute” and not when sale was confirmed.
 (1987) 3 SCC 146
 (1996) 5 SCC 48