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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar, J.
Abdul Ubedulla – Appellant
Vs.
Noorjahn – Respondents
Writ Petition No. 34092/2011 (GM-CPC)
Decided On: 24.03.2014
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.
Thereafter, once the sale is confirmed by an order of the Court, the auction purchaser would be entitled to possession of the property sold at the auction on an application being made by the purchaser under Order 21 Rule 95 CPC for an order delivering the property in his favour by putting him in possession of the same.
Under Article 134 f Limitation Act, 1963, application under Order 21, Rule 95 for delivery of possession to be made by decree-holder within one year. In other words, one year period starts running from the date when the Executing Court passes an order under Order 21, Rule 92 CPC confirming the sale. There is no time gap between an order confirming the sale and the same becoming absolute. The auction purchaser can seek delivery of possession under Order 21, Rule 95 CPC even without obtaining a certificate of sale. Even otherwise, when a sale certificate is issued on a subsequent date, it shall bear the date on which the sale became absolute. Therefore it is not date of issue of sale certificate but the date on which the sale became absolute which is relevant for calculating the period of limitation under Article 134 of the Limitation Act in respect of an application under Order 21, Rule 95 CPC., Therefore the impugned order is proper. Writ Petition dismissed with liberty to initiate appropriate proceedings for recovery of possession.
CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rule 95 & Section 47: [N. Kumar, J] Court auction - Delivery of possession to auction purchaser - The auction purchaser has to make an application under Order 21, Rule 95 within one year from date of confirmation of sale as prescribed under Article 134 of Limitation Act, 1963. Otherwise he will forfeit the remedy under Order 21, Rule 95 CPC., But by inadvertence or by mistake if he does not choose to file application within one year from the date of confirmation of sale, his right in the property does not get extinguished. If the application is not filed within one year, then the auction purchaser is not entitled to possession of the property in the said execution proceedings. But that cannot take away his right to recover possession by filing a suit. The sale in his favour being made absolute, he would become the absolute owner of the property and shall have all the rights over such property under law including the right to recover possession. The only difference is, if such application is filed within one year he will get possession without paying any Court fee and without waiting for years. Once he loses that advantage given under law, then he has to file a suit for possession, pay requisite Court fee and such a suit is to be filed within 12 years from the date when the defendant’s possession becomes adverse to is interest. In other words, on his failure to avail such a quick remedy, the law relegates him to the remedy of a regular suit for possession based on title, subject again to limitation. Such remedy is not barred under law.
LIMITATION ACT, 1963 - Article 134: [N. Kumar, J] Limitation for Court auction purchaser to seek delivery of possession - It is one year from date of confirmation of sale and not from the date of issue of sale Certificate.
Yes, the judgment references the Supreme Court's position regarding the limitation period for filing applications under Order 21 Rule 95 CPC. Specifically, it clarifies that the limitation begins from the date the sale becomes absolute after confirmation by the court, and not from the date of issuance of the sale certificate. The court emphasizes that the sale becomes absolute upon confirmation, which is the relevant date for calculating the limitation period, and that the sale certificate is merely evidence of the sale, not a prerequisite for filing the application for possession. This interpretation aligns with the principles laid down by the Supreme Court in prior judgments regarding the timing of title transfer and limitation in court auction proceedings (!) (!) .
N. Kumar, J.
1. This writ petition is filed by the auction purchaser in a Court sale whose application under Order 21 Rule 95 CPC seeking delivery of possession of the property purchased in Court auction is rejected on the ground that the application is barred by limitation. Respondent Nos. 1 to 5 filed a suit, O.S. No. 123/1999 on the file of Principal Civil Judge (Junior Division), Madhugiri, against 6th respondent seeking a decree for maintenance and creation of charge in respect of two items of schedule properties. The said suit, after contest, came to be decreed on 06.11.2003 granting monthly maintenance of Rs. 400/- to the 1st respondent and Rs. 300/- to each of respondent Nos. 2 to 5. 6th respondent was also directed to pay cost of Rs. 1,254/- and charge was created on item Nos. 1 and 2 of the schedule properties. 6th respondent preferred R.A. No. 162/2003 challenging the said judgment and decree, but the judgment and decree of the trial Court was not stayed therein. Therefore respondent Nos. 1 to 5 filed execution petition Ex. No. 39/2004 on 07.04.2004 for recovery of arrears of maintenance of Rs. 6,159/- and also sought for attachment and sale of properties on which the charge had been created. In the meanwhile appeal filed by 6th respondent came to be dismissed confirming the judgment and decree of the trial Court against which order 6th respondent preferred no appeal and therefore it attained finality. On the death of 6th respondent his legal heirs born through the first wife were brought on record, but they too did not satisfy the decree. Therefore suit item No. 1 was brought to sale after attaching the same in the execution proceedings. In the Court auction held on 16.01.2007, the petitioner herein was declared to be the highest bidder; he deposited the bid amount within the time stipulated and the sale in his favour was confirmed on 20.08.2008. The sale certificate came to be issued on 16.01.2009.
2. The petitioner herein filed a petition under Order 21 Rule 95 CPC on 09.09.2009 in Misc. Petition No. 7/2009 seeking delivery of possession of the property purchased by him in the Court auction. The legal representatives of deceased 6th respondent filed their statement of objections contending that the application filed under Order 21 Rule 95 CPC is to be dismissed as barred by limitation under Article 134 of the Limitation Act. The executing Court, after considering the rival contentions and after taking note of the decisions on which reliance was placed by both the parties, came to the conclusion that the limitation for filing an application under Order 21 Rule 95 CPC starts from the date of confirmation of sale and not from the date of issuance of sale certificate; the miscellaneous petition filed on 09.09.2009 is time barred and therefore dismissed the petitioner's application. Aggrieved by the said order, the petitioner is before this Court.
3. Learned counsel for the petitioner assailing the impugned order argued that, having regard to the language employed in Order 21 Rule 95 CPC an application by the auction purchaser seeking delivery of possession is to be filed only after sale certificate is issued and therefore it is the date of issue of sale certificate which is the starting point for filing the application under Order 21 Rule 95 CPC; the trial Court committed a serious error in ignoring the said provision and computing the period of limitation from the date of confirmation of sale and therefore the impugned order should be set aside.
4. Per contra, the learned counsel for the judgment-debtors/respondents herein argued that the title in the property which is the subject matter of the Court sale passed on the date of confirmation of sale; issuing sale certificate is not a proof of such sale. In view of the language employed in Article 134 of the Limitation Act, one year period prescribed thereunde
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