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A.M.SHAFFIQUE, SUNIL THOMAS, GOPINATH P.
Danish Varghese – Appellant
Versus
Jancy Danish – Respondent
Key Points: - On failure to file for delivery under Order XXI R.95 within the Art.134 period, the right to enforce delivery in execution is barred, but suits for possession on the strength of title within Art.65 may be maintainable. (!) (!) (!) - The starting point for Art.134 limitation is the date when the sale becomes absolute (vesting/transfers of title), not necessarily the date of sale or issuance of certificate. (!) (!) (!) - Delivery of possession is the natural culmination of execution by sale, but failure to obtain delivery does not extinguish title; a fresh suit for possession based on title may be possible under Art.65 in certain contexts. (!) (!) (!) - The court sale creates vesting in the purchaser from the date of sale, with delivery proceedings governed by Order XXI R.95, and a separate suit is generally not maintainable for delivery if limitation has expired. (!) (!) (!) - If a fresh suit is pursued for possession on the strength of title, it may fall within Art.65 and may be maintainable, subject to pleading and factual context. (!) (!)
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 pro
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