Execution application barred by limitation; auction sale legitimacy not reviewable under current application framework.

O R D E R

This civil revision petition challenges the order passed by the learned Principal District Munsif, Dindigul, in E.A.No.8 of 2020 in E.P.No.37 of 2017 in O.S.No.541 of 2005, dated 10.08.2022.

2. The civil revision petitioner is the judgement debtor in O.S.No.541 of 2005. The said suit had been presented for recovery of money against one Alagarsamy. The suit was decreed on 30.01.2006. The decree was not honoured. Consequently, the decree holder took out an application for attachment and sale of the property. During the course of execution in E.P.No.37 of 2017 in O.S.No.541 of 2005, the property was sold. The 1^st respondent herein, one Ramamoorthi purchased the property in the court auction sale held on 28.11.2018. The sale was confirmed in favour of the said Ramamoorthi on 13.12.2018. A sale certificate was issued to him on 05.12.2019. An application seeking delivery of possession of the property was filed 22.01.2020. The learned Judge, allowed the application. Hence, this revision.

3. Mr.S.Venkatesh urged two points in support of the revision.

One is that, the auction sale was in excess of the amounts due under the decree. According to him, the decree was for Rs.40,000/-, whereas the property is worth more than a few lakhs. The second point is that the application filed by the auction purchaser was barred by time.

4. This is opposed by Mr.D.Venkatesh stating that, the issue of excessive execution cannot be gone into in an application filed under Order 21 Rule 95 of the Code of Civil Procedure. Secondly, that the application under Order 21 Rule 95 is not barred, since E.A.No.8 of 2020 was filed within a year from the issuance of the sale certificate on 05.12.2019.

5. I agree with Mr.D.Venkatesh, that in an application filed under Order 21 Rule 95 of the Code of Civil Procedure, the executing Court cannot go beyond the sale that has already been confirmed. The scope of enquiry is, whether the auction purchaser, who possesses a sale certificate, is entitled to take delivery of possession or not. His right to file an application is only after the sale becomes absolute and a sale certificate is issued by the Executing Court under Order 21 Rule 94. Therefore, the plea of S.Venkatesh, learned counsel for the petitioner, that the sale is an act of excessive execution, cannot be acceded to. There are several provisions under the Code of Civil Procedure which could have been availed by the judgement debtor, either under Order 21 Rule 89 or under 21 Rule 90, to save the property from being sold. Having not availed of those opportunities, it is not open to the judgement debtor in an application filed by the auction purchaser to plead that the sale is in excess. Hence, that portion of the argument of Mr.S.Venkatesh stands rejected.

6. Insofar as the second plea is concerned, Mr.S.Venkatesh is on firmer legal grounds. An application seeking delivery of possession of the property sold in a court auction in execution of a decree is governed by Article 134 of the Limitation Act. The period of limitation is one year. The terminus a quo for filing such an application begins when the sale is made absolute and not when a sale certificate is issued by the Court. The following dates are not in dispute. Auction was held on 28.11.2018. It was confirmed on 13.12.2018. The application under Order 21 Rule 95 was filed on 22.01.2020. Thus, it is clear that on the date of filing of the application, the petition was hopelessly barred by limitation. The view taken by me finds support from the judgement of the Supreme Court in Pattam Khader Khan Vs. Pattam Sardar Khan and another reported in (1996) 5 SCC

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7. Hence, this Civil Revision Petition is allowed. The