IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 24TH DAY OF MARCH, 2014

BEFORE

THE HON’BLE Mr. JUSTICE N. KUMAR

WRIT PETITION No. 34092/2011 (GM-CPC)

BETWEEN: Sri ABDUL UBEDULLA S/O. LATE ABDUL SATHAR SAB AGED ABOUT 44 YEARS R/A. KODIGEHALLI MADHUGIRI TALUK – 572 127 …PETITIONER

(BY SRI VIVEK B RAMAKRISHNA FOR SRI KASHYAP N NAIK, ADVOCATES)

AND: 1. Smt. NOORJAHN W/O. ABDUL JABBASAB AGED ABOUT 62 YEARS 2. Sri. ABIDA @ FARIDA BANU AGED ABOUT 29 YEAS 3. Sri. RAHAMATHULLA AGED ABOUT 27 YEARS 4. Smt. FAMIDA BANU AGED ABOUT 23 YEARS 5. Smt. AYISHA BANU AGED ABOUT 17 YEARS

®

2

REP. BY HER MOTHER AND NATURAL GURADIAN Smt. NOORJAHN - 1ST RESPONDENT HEREIN 6. Sri. ABDUL JABBAR SAB S/O. SHEIK ABDULLA SAB SINCE DEAD BY LEGAL REPRESENTATIVES 6A. Sri. KAKHEER S/O. LATE ABDUL JABBAR SAB AGED ABOUT 40 YEARS R/A. MASIJDIE SIDDIQUE EAK BAR P.G. LAYOUT P.H. COLONY TUMKUR – 572 101. 6B. Smt. SAREENA BANU D/O. LATE ABDUL JABBAR SAB C/O. ABUDUL SHAFFIULLA ALOMEENA SCHOOL ADMINISTRATOR Dr. No. 10, VI CROSS MAVALLI, MAJEED

LALBAG BANGALORE – 560 004 …RESPONDENTS

(BY SRI T V SUBRAMANYA PRASAD, ADV., FOR R-1 TO 4 SRI G S VENKATASUBBA RAO, ADV., FOR R-6A AND B

R-5 SD.) THIS WRIT PETITION. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO ALLOW MISC. PETITION No. 7/2009 FILED BY THE PETITIONER SEEKING DELIVERY OF VACANT POSSESSION OF THE SCHEDULE PROPERTY AND ETC. THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT PASSED THE FOLLOWING;

3

O R D E R

This writ petition is filed by the auction purchaser in a

Court sale whose application under Order 21 Rule 95 CPC

seeking delivery of possession of the property purchased in

Court auction is rejected on the ground that the application

is barred by limitation.

2. Respondent Nos. 1 to 5 filed a suit, O.S. No.

123/1999 on the file of Principal Civil Judge (Junior

Division), Madhugiri, against 6th respondent seeking a decree

for maintenance and creation of charge in respect of two

items of schedule properties. The said suit, after contest,

came to be decreed on 06.11.2003 granting monthly

maintenance of Rs.400/- to the 1st respondent and Rs.300/-

to each of respondent Nos. 2 to 5. 6th respondent was also

directed to pay cost of Rs.1,254/- and charge was created on

item Nos. 1 and 2 of the schedule properties. 6th respondent

preferred R.A. No. 162/2003 challenging the said judgment

and decree, but the judgment and decree of the trial Court

was not stayed therein. Therefore respondent Nos. 1 to 5

4

filed execution petition Ex. No. 39/2004 on 07.04.2004 for

recovery of arrears of maintenance of Rs.6,159/- and also

sought for attachment and sale of properties on which the

charge had been created. In the meanwhile appeal filed by

6th respondent came to be dismissed confirming the

judgment and decree of the trial Court against which order

6th respondent preferred no appeal and therefore it attained

finality. On the death of 6th respondent his legal heirs born

through the first wife were brought on record, but they too

did not satisfy the decree. Therefore suit item No. 1 was

brought to sale after attaching the same in the execution

proceedings. In the Court auction held on 16.01.2007, the

petitioner herein was declared to be the highest bidder; he

deposited the bid amount within the time stipulated and the

sale in his favour was confirmed on 20.08.2008. The sale

certificate came to be issued on 16.01.2009.

3. The petitioner herein filed a petition under Order

21 Rule 95 CPC on 09.09.2009 in Misc. Petition No. 7/2009

seeking delivery of possession of the property purchased by

5

him in the Court auction. The legal representatives of

deceased 6th respondent filed their statement of objections

contending that the application filed under Order 21 Rule 95

CPC is to be dismissed as barred by limitation under Article

134 of the Limitation Act. The executing Court, after

considering the rival contentions and after taking note of the

decisions on which reliance was placed by both the parties,

came to the conclusion that the limitation for filing an

application under Order 21 Rule 95 CPC starts from the date

of confirmation of sale and not from the date of issuance of

sale certificate; the miscellaneous petition filed on

09.09.2009 is time barred and therefore dismissed the

petitioner’s application. Aggrieved by the said order, the

petitioner is before this Court.

4. Learned counsel for the petitioner assailing the

impugned order argued that, having regard to the language

employed in Order 21 Rule 95 CPC an application by the

auction purchaser seeking delivery of possession is to be

filed only after sale certificate is issued and therefore it is the

6

date of issue of sale certificate which is the starting point for

filing the application under Order 21 Rule 95 CPC; the trial

Court committed a serious error in ignoring the said

provision and computing the period of limitation from the

date of confirmation of sale and therefore the impugned

order should be set aside.

5. Per contra, the learned counsel for the

judgment-debtors/respondents herein argued that the title

in the property which is the subject matter of the Court sale

passed on the date of confirmation of sale; issuing sale

certificate is not a proof of such sale. In view of the language

employed in Article 134 of the Limitation Act, one year period

prescribed thereunder has to be counted from the date of

confirmation of sale and not from the date of issuance of sale

certificate.

6. In the light of above, the point that arises for

consideration in this case is:

7

“Whether the period of limitation for

seeking delivery of possession by an auction

purchaser of immovable property at a Court sale

in execution of a decree begins from the date of

confirmation of sale or from the date of issuance

of sale certificate?”

7. Before dwelling upon the point for consideration

it is essential to understand the scheme provided for sale of

an immovable property under the Code of Civil Procedure.

Order 21 Rule 82 to Rule 96 deal with sale of immovable

property by the Court. Once a property is offered for sale in

auction conducted by the Court, the highest bidder in such

public auction would be declared as ‘purchaser’ and he shall

pay 25% of the purchase money immediately and the

balance is payable in to the Court before the Court closes on

the 15th day from the date of sale of property. After such

sale, Rule 89 provides for an application for setting aside the

sale on account of sale consideration being not deposited in

the Court. Rule 90 provides for an application for setting

aside the sale on the ground of irregularity or fraud. Where

8

no application is made under Rule 89, 90 or 91 or where

such application is made and disallowed under Rule 92, the

Court shall make an order confirming the sale and there

upon the sale shall become absolute. Once an order is made

confirming the sale, no suit to set aside an order confirming

such sale shall be brought by any person against whom

such order is made. The remedy provided against an order

confirming the sale is to prefer an appeal and separate suit

is not maintainable. On the confirmation of sale the Court

shall grant a certificate specifying the full details and

description of the property sold; the name of the person who

at the time of auction sale is declared as be the purchaser

and the date on which the sale became absolute. The sale

certificate is thus, only an evidence of such sale and not a

document of title. The title in an immovable property sold in

the Court sale passes to the auction purchaser, not under

the certificate of sale but by an order of confirmation of sale.

8. The title of the court auction-purchaser becomes

complete on the confirmation of the sale under Order 21

9

Rule 92. By virtue of Section 65 CPC, the property vests in

the purchaser from the date of sale. The certificate of sale, by

itself do not create any title. It is merely evidence of title.

The sale certificate is a formal acknowledgement of a fact

already accomplished, stating as to what stood sold. Such

act of the court is pristinely a ministerial one and not

judicial. It is in the nature of a formalization of the obvious.

The title to the property sold does not vest in the purchaser

immediately on the sale thereof unlike in the case of a

private sale. The court was required to make an order

confirming the sale. It is upon such confirmation that the

sale becomes, absolute in terms of Order 21 Rule 92. Such

certificate bears the date as on which the sale became

absolute. It is on the sale becoming absolute that the

property sold vests in the purchaser. The vesting of the

property is thus made to relate back to the date of sale as

required under Section 65 CPC.

9. Therefore, once the sale is confirmed by an order

of the Court, the auction purchaser would be entitled to

10

possession of the property sold at the auction on an

application being made by the purchaser under Order 21

Rule 95 CPC for an order delivering the property in his

favour by putting him in possession of the same.

10. Article 134 of the Limitation Act prescribes the

time limit within which an application under Order 21 Rule

95 CPC is to be filed and it reads as under:

Art. 134 For delivery of possession by a purchaser of immovable property at a sale in execution of a decree

One year When the sale becomes absolute

11. A reading of the aforesaid provision makes it

clear that an application under Order 21 Rule 95 for delivery

of possession by a purchaser of immovable property on a

sale in execution of a decree is to be filed within one year

from the date when the sale becomes absolute. In other

words, one year period starts running from the date when

the Executing Court passes an order under Order 21 Rule 92

CPC confirming the sale. There is no time gap between an

order confirming the sale and the same becoming absolute.

11

Once an order is passed confirming the sale, the sale

becomes absolute and within one year from that date, an

application under Order 21 Rule 95 has to be filed. Issue of

sale certificate under Rule 94 is of no consequence. The

auction purchaser can seek delivery of possession under

Order 21 Rule 95 CPC even without obtaining a certificate of

sale. Even otherwise, when a sale certificate is issued on a

subsequent date, it shall bear the date on which the sale

became absolute. Therefore it is not the date of issue of sale

certificate but the date on which the sale became absolute

which is relevant for calculating the period of limitation

under Article 134 of the Limitation Act in respect of an

application under Order 21 Rule 95 CPC.

12. The Apex Court had an occasion to consider

Article 134 of Limitation Act in the case of PARTTA

KHADER KHAN vs PATTAM SARDAR KHAN AND

ANOTHER, 1996(5) SCC 48 and in the said decision it is

held as under:

12

“10. Now to the spirit of it. A court sale is a

compulsory sale, conducted by or under orders of

the court. The title to the property sold does not

vest in the purchaser immediately on the sale

thereof unlike in the case of a private sale. The

law requires that it does not become absolute

until sometime after the sale; a period of a least

30 days must expire from the date of sale before

the sale can become absolute. In that while, the

sale is susceptible of being set aside at the

instance of the judgment-debtor on the ground of

irregularity in publication or conduct of the sale or

on defalcation as regard deposit of money etc., as

envisaged in Rules 89 and 90 of Order 21. Where

no such application is made, as is the case here,

the court was required, as indeed it did, to make

an order, confirming the sale and it is upon such

confirmation that the sale becomes, and became,

absolute in terms of Order 21 Rule 92. After the

sale has become absolute, a certificate is required

to be granted by the court to the purchaser,

termed as “certificate of sale” in Order 21 Rule

94. Such certificate bears the date as on which

the sale became absolute. It is on the sale

becoming absolute that the property sold vests in

the purchaser. The vesting of the property is thus

13

made to relate back to the date of sale as

required under Section 65 CPC.

11. Order 21 Rule 95 providing for the

procedure for delivery of property in occupation of

the judgment-debtor etc., requires an application

being made by the purchaser for delivery of

possession of property in respect of which a

certificate has been granted under Rule 94 of

Order 21. There is nothing in Rule 95 to make it

incumbent for the purchaser to file the certificate

along with the application. On the sale becoming

absolute, it is obligatory on the court though, to

issue the certificate. That may, for any reason,

get delayed. Whether there be failure to issue the

certificate or delay of action on behalf of the court

or the inaction of the purchaser in completing the

legal requirements and formalities, are factors

which have no bearing on the limitation

prescribed for the application under Article 134.

The purchaser cannot seek to extend the

limitation on the ground that the certificate has

not been issued. It is true though that order for

delivery of possession cannot be passed unless

sale certificate stands issued. It is manifest

therefore that the issue of a sale certificate is not

“sine qua non” of the application, since both these

14

matters are with the same court. The starting

point of limitation for the application being the

date when the sale becomes absolute i.e. that

date on which title passed, the evidence of title, in

the for of sale certificate, due from the court, could

always be supplied later to the court to satisfy

the requirements of Order 2 Rule 95. see in this

regard Babulal Nathoolal V. Annapurnabai,

which is a pointed. It therefore becomes clear that

the title of the court auction-purchaser becomes

complete on the confirmation of the sale under

Order 21 Rule 92, and by virtue of the thrust of

Section 65 CPC, the property vests in the

purchaser from the date of sale; the certificate of

sale, by itself, not creating any title but merely

evidence thereof. The sale certificate rather is a

formal acknowledgement of a fact already

accomplished, stating as to what stood sold. Such

act of the court is pristinely a ministerial one and

not judicial. It is in the nature of a formalization of

the obvious.”

13. Following the ratio in the aforementioned

decision, the Apex Court in the case of BALAKRISHNAN vs

MALAIYANDI KONART, AIR 2006 SC 1458 held as under:

15

“14. The limitation for the purpose of Article

134 starts from the date of confirmation of sale.

(See Ganpat Singh (dead) by L.Rs. V. Kailash

Shankar and Ors. 1987(3) SCC 146). In Pattam

Khader Khan V. Pattem Sardar Khan and Anr.

(1996 (5) SCC 48) this court held that it is not

from the date when the sale certificate is issued

that the limitation starts running. The sale

becomes absolute on confirmation under Order

XXI Rule 92 of the Code effectively passing title. It

cannot be said to attain finality only when sale

certificate is issued under Order XXI Rule 94.

There can be variety of factors conceivable for

which delay can be caused in issuing a sale

certificate. The period of one year limitation now

prescribed under Article 134 of the Limitation Act

in substitution of a three year period prescribed

under Article 180 of the Indian Limitation Act,

1908 is reflective of the legislative policy of

finalizing proceedings in execution as quickly as

possible by providing a quick forum to the

auction-purchaser to ask for the delivery of

possession of the property purchased within that

period from the date of the sale becoming

absolute rather than from the date of issuance of

the sale certificate. On his failure to avail such a

quick remedy the law relegates him to the remedy

16

of a regular suit for possession based on title,

subject again to limitation.”

14. Therefore, the legal position is very clear. The

limitation for the purpose of Article 134 starts from the date

of confirmation of sale. It is not from the date when the sale

certificate is issued that the limitation starts running. The

purchaser cannot seek to extend limitation on the ground

that the certificate had not been issued. Issuance of sale

certificate is not a sine qua non for filing an application

under Order 21 Rule 95 CPC. On the sale becoming absolute

the property sold vests in the purchaser. Therefore the sale

certificate is a formal acknowledgment of a fact already

accomplished stating as to what was sold. The sale becomes

absolute on confirmation under Order XXI Rule 92 of the

Code effectively passing title. On his failure to avail such a

quick remedy the law relegates him to the remedy of a

regular suit for possession based on title, subject again to

limitation. Therefore the order of the Executing Court that

an application filed under Order 21 Rule 95 CPC is barred by

time cannot be found fault with.

17

15. The argument of the respondent is that, as the

question of delivery of possession as adjudicated by the

executing Court has attained finality, a separate suit for

recovery of possession is not maintainable. He sought to

support the said argument by placing reliance on a judgment

of the Supreme Court in HARNANDRAI BADRIDAS V.

DEBIDUTT BHAGWATI PRASAD AND OTHERS, reported in

AIR 1973 SC 2423 wherein it is held that, as a result of

amendment to Section 47, the purchaser at a sale in

execution of a decree, whether he is decree-holder or not is

unquestionably a party to the suit for the purpose of Section

47. Having regard to this, all questions arising between the

auction-purchaser and the judgment-debtor must be

determined by the executing Court and not by a separate

suit. Therefore, it is contended that the auction purchaser,

by virtue of the aforesaid provisions, becomes a party to the

suit and his request for delivery of possession has been

considered by the executing Court and once it is negatived,

his right to possession for all time to come stood

18

extinguished. Further reliance is also placed on the

judgment of this Court in D. Rangappa Vs. G. Mudlappa and

others, reported in ILR 2005 Kar. 4759 wherein relying on

the judgment of the Apex Court in Harnandrai Badridas case

cited supra, this Court held that a suit for recovery of

possession without filing an application under Order 21 Rule

95 CPC for possession by the auction purchaser as not

maintainable.

16. Section 47 of the Code which deals with

questions to be determined by the Court executing the

decree reads as under:

47. Questions to be determined by the

court executing decree:

(1) All questions arising between the parties

to the suit in which the decree passed, or their

representatives, and relating to the execution,

discharge or satisfaction of the decree, shall be

determined by the Court

(2) [***]

19

(3) Where a question arises as to whether

any person is or is not the representative of a

party, such question shall, for the purposes of

this section, be determined by the court.

[Explanation I : For the purposes of this

section, a plaintiff whose suit has been dismissed

and a defendant against whom a suit has been

dismissed are parties to the suit.

Explanation II : (a) For the purposes of this

section, a purchaser of property at a sale in

execution of a decree shall be deemed to be a

party to the suit in which the decree is passed;

and

(b) All questions relating to the delivery of

possession of such property to such purchaser or

his representative shall be deemed to be

questions relating to the execution, discharge or

satisfaction of the decree within the meaning of

this section.]”

17. An auction purchaser therefore, shall be deemed

to be a party to the suit in which the decree is passed and all

questions relating to delivery of possession of such property

20

to such purchaser shall be deemed to be the questions

relating to the execution, discharge or satisfaction of the

decree within the meaning of the section and all such

questions shall be determined by the Court executing the

decree and not by a separate suit. All that it means is that

the auction purchaser, after the sale is confirmed in his

favour, is not expected to file a suit for possession. He will be

treated as a party to the suit and can file an application

under Order 21 Rule 95 CPC seeking recovery of possession.

The right of an auction purchaser to recover possession

being not in dispute there is nothing to be adjudicated in

such proceedings. Once there is an order confirming the sale

and an application under Order 21 Rule 95 being filed in the

very same proceedings, the Court which confirmed the sale

also has the power to deliver possession; only one condition

to be satisfied is that such a request/application for delivery

of possession shall be filed within one year from the date of

confirmation of sale. The Legislature in order to avoid

inconvenience and hardship to such auction purchasers has

provided remedy by way of application under Order 21 Rule

21

95 CPC so that the auction purchaser would get possession

expeditiously in the very same execution proceedings. But by

inadvertence or by mistake if he does not choose to file

application within one year from the date of confirmation of

sale, his right in the property does not get extinguished. If

the application is not filed within one year, then the auction

purchaser is not entitled to possession of the property in the

said execution proceedings. But that can not take away his

right to recover possession by filing a suit. The sale in his

favour being made absolute, he would become the absolute

owner of the property and shall have all the rights over such

property under law including the right to recover possession.

The only difference is, if such application is filed within one

year he will get possession without paying any Court fee and

without waiting for years. Once he loses that advantage

given under law, then he has to file a suit for possession, pay

requisite Court fee and such a suit is to be filed within 12

years from the date when the defendant’s possession

becomes adverse to his interest. In other words, on his

failure to avail such a quick remedy, the law relegates him to

22

the remedy of a regular suit for possession based on title,

subject again to limitation. Such remedy is not barred under

law.

In that view of the matter, I pass the following;

O R D E R

1. Writ petition is dismissed.

2. Liberty is reserved to the petitioner to initiate

appropriate proceedings for recovery of

possession independently.

Sd/- JUDGE

LRS