The limitation for an auction purchaser to seek delivery of possession commences from the issuance of the sale certificate, and a separate suit for recovery of possession is barred under Section 47 of the CPC.

ORDER :

Prayer : Review Petition has been filed under Order 47 Rule 1, r/w. 114 of C.P.C against the order dated 31.01.2019 made in S.A.No.97 of 2019 passed by this Court.

This review application has been filed contending that the judgment under review requires a reconsideration in the light of law laid down in 1996 (5) SCC 48 [Pattam Khader Khan vs. Pattam Sardar Khan]and 2017(6) CTC 602 [T.Muthukumarasamy vs. J. Selvasundarraj] and that in the light of the above two judgments, there appears to be an error apparent on the face of the record and there are sufficient reasons for seeking a review of the judgment.

2. In the judgment under review, the judgments above referred to have not been brought to the notice of this Court and relying on the judgment reported in 2004 (4) CTC 148 [Ratan Bapu Patil (dead) by Lrs and Others Vs. Dodhu and Others], the second appeal has been dismissed.

3. In the light of the submissions made, the judgment which is the subject matter of this review petition requires to be reviewed and accordingly, the review application is allowed. Both the learned counsels have made their submissions in the main second appeal itself.

4. The above second appeal is filed challenging the concurrent judgment and decree passed against the plaintiff, an auction purchaser who had filed a suit for recovery of possession.

5. Since the facts of the case has been stated in the earlier judgment dated 31.01.2019, the very same facts relevant for disposing of the above are reproduced herein below:

“2. The plaintiff is a successful bidder in a Court auction held in 13.06.2001 in E.A.206 of 2001 in E.P.No.51 of 2000. After the confirmation of the auction sale the plaintiff had moved for issuance of sale certificate and by an order dated 31.03.2010 the sale certificate was also issued to the plaintiff. Thereafter, on 15.06.2010, the plaintiff who was the auction purchaser took out proceedings under Order XXI Rule 95 read with read with Section 151 of the Code of Civil Procedure in E.P.No.28 of 2010 for delivery of possession. Since the Execution Petition is filed much beyond one year period the Execution Petition was dismissed giving liberty to the petitioner to file a suit.

3. Pursuant to this Order on 18.04.2011 the plaintiff had filed the suit O.S.No.42 of 2012 on the file of the District Munsif Court, Sathyamangalam for recovery of possession of the property which is the subject matter of this Second Appeal. The suit was dismissed on the ground that it was barred by the provision of Article 134 of the Limitation Act, which provides that any proceedings for recovery of possession by the auction purchaser should be made with a period of one year from the date of the confirmation of the sale. The Court below has opined that recovery of possession was not in the usual course but only as a auction purchaser and when the Act specifies a particular time period the hands of the court are tied.”

6. The short point that is placed for the consideration of this Court in this second appeal and which is framed as the substantial questions of law are as follows:

“(1) Whether the period of limitation for filing a petition for delivery of possession by an auction purchaser commences one year from the date when the sale had become absolute or one year from the date of issuance of the sale certificate, in other words would the provisions of Article 65 or Article 134 of the Limitation Act that applies?

(2) Whether the suit filed by the appellant/plaintiff is barred under Section 47 of the Code of the Civil Proceedure particularly when the suit itself was filed pursuant to the liberty granted in E.P.No.28 of 2004 in O.S.No.265 of 1999 dated 17.02.2011 which was passed after hearing the arguments of both the parties.”

7. Mr.N.Manoharan, the learned counsel appearing on behalf of the appellant/plaintiff would contend that the suit filed by the plaintiff has been dismissed by both the Courts below on the ground that the suit is barred by the provisions of Secti