IMPORTANT POINT
The main legal point established in the judgment is that the sale becomes absolute only after the final disposal of ancillary proceedings, and the one-year limitation period under Article 134 of the Limitation Act commences from the date of such disposal.

JUDGMENT :

C.Pratheep Kumar, J.

1. This is a petition filed by the decree holder in E.P.9/2015 in O.P.No.664 of 2002 on the file of the Family Court, Thodupuzha. In the above OP, the Family Court granted a decree for realization of value of gold and patrimony from the judgment debtor. Before this Court the parties settled the dispute in Mat.Appeal No.211/2007 and a compromise decree was passed. In execution of the above compromise decree, an extent of 83 cents of property belonging to the judgment debtor was put to sale and the petitioner herein purchased the same on 6.11.2017 for a sum of Rs.15,66,350/-. The respondent/judgment debtor filed E.A.No.45/2017 under XXI Rule 90 of CPC praying for setting aside the sale. As per Ext.P2 order, the Execution Court dismissed the E.A on 15.5.2018 and on the same day the sale was confirmed. Thereafter, on 3.6.2018, the respondent filed E.A.No.15/2018 praying for restoring E.A.45/2017. The petitioner herein filed Ext.P4 counter to E.A.No.15/2018. On 22.5.2019 the Execution Court dismissed E.A.15/2018, as per Ext.P5 order. Thereafter, on 11.10.2019 the petitioner filed E.A.31/2019 under Order XXI Rule 95 CPC for delivery of the property purchased by him. Ext.P6 is the copy of E.A.31/2019.

2. The respondent filed Ext.P7 counter to Ext.P6 opposing Ext.P6 mainly on the ground that it is filed after the expiry of the period of limitation as provided under Article 134 of the Limitation Act. The Execution Court, after accepting the contention raised by the respondent, dismissed E.A.31/2019 as per Ext.P8 order holding that it is barred by limitation. Aggrieved by the above order, the decree holder preferred this petition raising various grounds. Now the points that arise for consideration are the following :-

(i) Whether E.A.31/2019 filed under Order XXI Rule 95 of CPC is barred by limitation ?

(ii) Whether the impugned order of the Execution Court dismissing E.A.31/2019 is liable to be interfered with, in the light of the grounds raised in the application ?

3. Heard both the parties.

4. The points 1 and 2 :-It was argued on behalf of the respondent/judgment debtor that by virtue of Article 134 of the Limitation Act, an application under Order XXI Rule 95 CPC is to be filed within a period of one year from the date of confirmation of sale. It was contended that in the instant case, the sale was confirmed on 15.5.2018 and as such E.A.31/2019 filed on 11.10.2019, after the expiry of 1 year is barred by limitation. Therefore, it was argued on behalf of the respondent that the impugned order passed by the Execution Court is perfectly valid. On the other hand, the learned counsel for the petitioner would argue that after the confirmation of sale on 15.5.2018, the respondent filed Ext.P3 E.A.No.45/2017 for restoring E.A.No.15/2018. Thereafter, the Execution Court passed Ext.P5 orders dismissing E.A.15/2018 on 22.5.2019 and as such the application filed for delivery on 11.10.2019 is within the period of limitation prescribed under Article 134 of the Limitation Act. Therefore, it was further argued that the impugned order dismissing E.A.15/2018 is unsustainable and liable to be interfered with.

5. Relying upon the decision of the Hon'ble Supreme Court in United Finance Corporation v. M.S.M.Haneefa, 2017 (1) KHC 647 [SC], it was argued by the learned counsel for the petitioner that where there is an appeal from an order of Execution Court disallowing application to set aside the sale, the sale will not become absolute until the disposal of the appeal, even though Execution Court may have confirmed the sale. In the above case, the judgment debtor has filed two applications, one to set aside the sale alleging that the property was sold for a lower price and as a result of which he sustained substantial injury. The other application was for appointing an Advocate Commissioner to assess the value of the property. As against the order dismissing the Commission application, the judgment debtor filed a revision before