2014 Supreme(Kar) 871

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Aravind Kumar, J.
Lingarajaiah - Appellants
Vs.
H.N. Jambappa - Respondent
Civil Revision Petition No. 281/2010
Decided On: 30.04.2014

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rules 89, 90, 91, 95: [Aravind Kumar, J] Court sale - Sale becomes absolute when no application is made under Rules 89, 90 or 91 or when such an application is made and disallowed - Title of auction purchaser becomes complete on confirmation of sale under Order 21, Rule 92 CPC - Limitation for Judgment-debtor to make an application to set aside sale is 60 days as prescribed under Article 134 - Limitation for Decree-Holder to seek possession is one year as prescribed under Article 137 of Limitation Act, 1963.

       CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rule 95: [Aravind Kumar, J] Delivery of Possession of property purchased in Court auction - Application made by Decree holder who was the successful bidder - Dismissal of application on the ground that it was not made within one year from the date when the sale became absolute - Held, Possession means such possession as the nature of the property is capable of. Under the law there are two modes of delivery and when auction purchaser both when there is a decree for possession and when the auction purchaser is to be given possession. These two modes do not depend upon the discretion of the Court but upon the nature of the property. If the property is in occupation of the judgment debtor or of some person on his behalf, etc., the possession is to be given under one mode, namely, by removing the judgment debtor and putting the auction purchaser or decree holder in possession of it vide Order 21, Rule 35 and 95 CPC. On the other hand, if the delivery is of a property not in occupation of the judgment debtor, but of a tenant or other person entitled to occupy the same, delivery of possession is to be given by proclaiming the possession of the decree holder or auction purchaser vide Order 21, Rule 36 or Rule 96 CPC. Rule 95 CPC as such, does not indicate the time within which such an application is to be made. As such, time prescribed under schedule to the Limitation Act, 1963 would be applicable namely, Third Division of Part I of Limitation Act, 1963 which relates to the applications specified thereunder. Article 134 of the Limitation Act would indicate that an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree has to be made within one year when the sale becomes absolute. There is nothing in Rule 95 to make it incumbent for the purchaser to file certificate along with his application. The Decree Holder cannot seek to extend the limitation on the ground that sale certificate had not been issued of sale certificate is not sine-qua-non for filing of an application within time prescribed under Article 134. Once sale has been confirmed by the Court, it confers absolute title on the auction purchaser, whether he be the Decree Holder or a stranger. The sale certificate is rather a formal acknowledgement of a fact already accomplished, stating as to what stood sold. In an application for possession by the purchaser of a property in a Court auction, the limitation starts from the date of sale becoming absolute vide Article 134 of the Limitation Act, 1963. The decree holder/auction purchase sold at a sale in execution of a decree has to file such application within one year.

        In the instant case spot sale was on 15.2.2002 and 16.2.2002, sale confirmed on 26.3.2002, Application of Judgment-debtor to set aside sale was filed on 30.9.2002 which was beyond time under Article 127 of Limitation Act and the same was rejected on 13.4.2010. Limitation for Decree-Holders right to seek delivery of possession commenced on 61st day i.e., 24.5.2002 and come to an end on 23.5.2003 whereas the application was filed on 5.9.2009, which was clearly time barred under Article 134 of Limitation Act. Hence Order of Execution Court dismissing the application of Decree holder for possession does not suffer from any infirmity.

       LIMITATION ACT, 1963 - Articles 134 & 137: [Aravind Kumar, J] Limitation for Decree Holders/Auction Purchaser to seek delivery of possession is one year from the date when the sale became absolute. The Judgment-Debtor’s right to seek setting aside of sale is 60 days - The Decree-holder, has to make application for delivery of possession within one year from the 61st day.