The main legal point established in the judgment is that an auction purchaser's right to seek delivery of a property is tied to the sale becoming absolute, and failure to file an application for delivery within the prescribed time limit can result in the dismissal of the application for revival of the delivery application.

1. The short facts of the case as could be gathered from the statement of facts contained in the memorandum of the civil revision petition are as follows: The property in question was purchased in court auction on 30-3-1968 by the Ist respondent (the assignee-decree holder-auction purchaser in the E. A. No. 146 of 1969, in E.P No. 158 of 1964, in O.S. No. 55) of 1958 on the file of the Munsiff of Ernakulam) After the confirmation of the sale on 9-7-1968 and the issue of the sale sannad, the auction purchaser filed E.A. No. 1509 of 1968 for delivery of the sannad property before the Munsiff of Ernakulam. On receipt of notice of the application respondents 3 to 6 herein, who are judgment-debtors 2. 3, 4 and 6, filed E. A. No. 149 of 1969 challenging the validity of the sale. That petition was allowed, and the sale set aside by the Court on 6-2-1970 holding that the sale was ab initio void for want of notice of sale proclamation. The auction purchaser took up the matter in appeal in A. S. No 123 of 1970 before the District Court, Ernakulam, which was later on transferred to the Sub Court. Ernakulam, where it was renumbered as A. S No. 294 of 1972. The appellate court allowed the appeal and confirmed the sale on 18-12-1976. The application for delivery (E. A. No. 1509 of 1968) filed by the auction purchaser before the execution court was dismissed when E A. No. 149 of 1969 was allowed on 6-2-1970 stating:

"Since the sale has been declared ab initio void this application is dismissed."

When, as noticed earlier, the appellate court subsequently set aside the order "of the execution court setting aside the sale, and confirmed the sale, the auction purchaser on 29-10-1977 filed E. A. No. 998 of 1977 purported to be under Ss 47 and 151 of the Code of Civil Procedure for the revival of E. A. No. 1509 of 1968, the application for delivery which was dismissed on 6-2-1970. The 5th judgment-debtor opposed the application; her main objection to that application was that it was barred by limitation. The court below, however, rejecting the contentions of the 4th judgment-debtor, allowed E. A. No 998 of 1977 on 4-12-1979. It is aggrieved by this order passed by the execution court that this revision has been preferred by the 5th judgment-debtor

2. The question that falls for decision is whether the auction purchaser is entitled to delivery of the property on the basis of the application E. A No 998 of 1977 for the revival of the delivery application E. A. No 1509 of 1968 dismissed on 6-2-1970 by the execution court. It is the contention of the revision petitioner that no application for delivery having been filed within one year from the date of the judgment, namely, 18-2-1976, in A. S. No. 294 of 1972 by which alone the sale was confirmed and made absolute, the auction purchaser had forfeited the right to have delivery of the property by virtue of the provisions contained in Art.134 of the Limitation Act, 1963.

3. The decision on the question of limitation under Art.134 of the Limitation Act would depend upon the date on which the sale became absolute. 0.21, R.92 (1) of the Code of Civil Procedure lays down:

"Sale when to become absolute or be set aside. (1) Where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:" (proviso omitted)

This is not a case where no application under R.89, R.90 or R.91 was made or an application made under any one of those rules was disallowed inasmuch as E A No. 149 of 1969 filed by the judgment-debtors under S.47 and R.90 CPC. was allowed and the sale was set aside; and with that the confirmation granted and the sannad issued also stood cancelled when the very sale was set aside and the delivery application itself was dismissed.

4. What remains to be considered is the effect of the judgment of the appellate court which in its penultimate paragraph stated as follows: