An auction purchaser who fails to take delivery within one year is barred from filing a fresh suit for possession under Section 47 CPC, but may file under Article 65 if based on title.

JUDGMENT :

1. The question involved in this Regular Second Appeal is whether an auction purchaser who failed to take delivery of the property within one year as provided under Article 134 of the Limitation Act,1963 is entitled to file a suit for recovery of possession on strength of his title as per Sale Certificate issued by the Execution Court.

2. It is a settled law that a Second Appeal under Section 100 of the Code of Civil Procedure shall not be admitted when the Substantial Question of Law raised therein is a settled question of law. The very same question which is involved in this Regular Second Appeal was considered by the Full Bench of this Court in Danish Varghese v. Jancy Danish [ 2021 (1) KHC 1 ]. Even though the very same question was considered and answered by the Full Bench of the Court, both sides rely on the findings of the Full Bench in support of their contention. The contention of the appellants/contesting defendants is that the Full Bench has laid down the law that a fresh suit for recovery of possession at the instance of an auction purchaser who failed to obtain delivery within the limitation period under Article 134 of the Limitation Act is barred under Section 47 CPC. On the other hand, the contention of the contesting respondents/legal heirs of the plaintiff is that a fresh suit for recovery of possession under Article 65 of the Limitation Act is not barred under Section 47 even if the auction purchaser failed to take delivery within one year as provided under Article 134.

3. The question was referred to the Full Bench by the Division Bench of this Court in view of the apparently conflicting views rendered in different decisions of the Hon’ble Supreme Court and this Court. The Full Bench of this Court considered relevant decisions on the point and answered the reference. Both sides cited the decisions considered by the Full Bench to substantiate their interpretation of the Full Bench. Since the Full Bench has considered the relevant decisions and answered the reference declaring the law on the point, the task of this Court is to ascertain what exactly is the dictum laid down by the Full Bench.

4. When this Regular Second Appeal came up for admission, the contesting respondents appeared through counsel, and both sides advanced arguments in the Appeal. Since this Court was of the view that the matter requires detailed consideration, this Court admitted this Regular Second Appeal on the following Substantial Questions of Law Nos. 1 and 3 formulated in the Second Appeal.

1. Whether on the facts and circumstances of the case, the Trial Court and the First Appellate Court were in error in holding that a Suit for recovery of possession based on title is maintainable at the instance of the Decree holder/ Auction Purchaser after expiry of the period of limitation for getting delivery of property as provided under Article 134 of the Limitation Act, was legally maintainable?

2. Whether on the facts and circumstances of the case the First Appellate Court was justified in applying the ratio of the Full Bench in 2021 (1) KHC 1 to hold that the suit was maintainable under Article 65 of the Limitation Act?

5. Since both the counsels advanced substantial arguments at the stage of admission, even though the appeal is of the year 2024, I decided to consider the question involved in this Regular Second Appeal since the very same question frequently arises for consideration in several other similar Appeals.

6. The 1^st respondent/plaintiff in this appeal is shown as died and the respondents 3 to 5 are the legal heirs of the 1^st respondent. Advocate. Sri. K.S.Hariharaputhran entered appearance for the respondents 3 to 5.