IMPORTANT POINT
On confirming the auction sale, the plaintiff exhausted all his remedies under S.47 of CPC, and the relevant Rules of O.21 of CPC to get the sale as well as order of confirmation set aside the sale. Separate suit to set aside the sale was barred under S.47 and R.92 of Order XXI.

ORDER :

The Order of the Court was delivered by Sunil Thomas, J.

1. The short legal issue referred to Full Bench by the order of Division Bench is whether an auction purchaser in a Court sale is entitled to file a separate suit for declaration of title and recovery of possession of the auctioned property based on the sale certificate issued by the Execution Court, after the period of limitation of one year from the date when the sale became absolute, as provided under Art.134 of the Limitation Act.

2. Brief facts are essential for a proper consideration of the issue involved: The appellant is the respondent/husband in O. P. No. 1377/2010 of the Family Court, Alappuzha. He had married the respondent herein. Later, the relationship got strained leading to the institution of matrimonial proceedings. Respondent herein had filed O. P. No. 473/1999 before the Family Court, Ernakulam for recovery of patrimony and gold ornaments. It was allowed after trial. E. P. No. 7/2006 was filed for execution of the above order, which was transferred to Family Court, Alappuzha, since the property proceeded against was situated within the jurisdiction of that Court. One third undivided right held by the appellant in the attached property was brought for sale. It was bid by the respondent on 19/05/2008 and sale was confirmed on 06/08/2008. Sale certificate was issued on 13/12/2009. E. A. No. 42/2008 filed by the appellant to set aside sale was dismissed by order dated 19/12/2008. Sale became absolute on 19/12/2008. It was later revealed that the appellant/judgment debtor had executed release deed dated 17/12/2010 in favour of his mother and brother, releasing his rights over the above property. On 11/01/2010, E. A. No. 15/2010 was filed by the respondent for delivery of one third undivided right sold in her favour as the auction purchaser. The above application was dismissed on 06/08/2010 on the ground that it was filed beyond the time prescribed under Art.134 of the Limitation Act, 1963. That order has become final in the absence of any challenge.

3. On 29/12/2010, the respondent herein filed O. P. No. 1377/2010 before the Family Court, Alappuzha seeking recovery of possession of the property assigned to her by the sale certificate. The relief sought in the above petition was to pass a decree of recovery of possession directing the appellant to put the respondent in possession and if he fails to do so, to allow the recovery of possession. The appellant herein raised an objection that the petition was hit by Art.134 of the Limitation Act, 1963, which prescribed one year period for seeking delivery of the property sold in court auction, reckoned from the date when the sale became absolute. The above petition was allowed by the Family Court, Alappuzha by order dated 17/07/2012. It was held by the Trial Court that limitation under Art.134 of the Limitation Act starts from the date of confirmation of sale, though title effectively passes to the auction purchaser under Order XXI R.92 of the Code of Civil Procedure. It was held that in such cases, if an application for delivery is not filed within the period prescribed under Art.134 of the Limitation Act, remedy open was to sue for possession based on title. To reach the above conclusion, the learned Family Court Judge placed reliance on the judgment of the Supreme Court in Balakrishnan v. Malaiyandi Konar (2006 (1) KLT (SC)) wherein it was held that the decree holder who fails to file application for delivery in terms of Art.134 of Limitation Act was entitled for recovery of possession. This is challenged by the appellant in the Matrimonial Appeal.

4. When the Matrimonial Appeal came up before a Division Bench to which one among us (A. M. Shaffique, J.) was a party, it was noticed by the Division Bench that Honourable Supreme Court in K. R. Lakshminarayana Rao v. New Premier Chemical Industries, (2005) 9