Abdul Rehman vs Vth Addl. Distt.Judge,Fatehpur & Ors.

D.P. Singh, J.—Pleadings are complete and the Counsel for the parties agree that the petition may finally be disposed off under the Rules of the Court.

Heard Counsel for the parties.

This writ petition is directed against the orders dated 45 1991 and 5,1.1996 whereby objection of the petitioner against the delivery of possession of the disputed house has been rejected by both the Courts below.

Father of the respondent No. 3 filed a money suit No. 285 of 1959 for recovery of sum of Rs.400/, which was decreed. An execution application was filed by him which was registered as execution case No. 186 of 1963 wherein the disputed house was sold in a Court auction on 2931964 and was purchased by the decree holder himself. The sale was made absolute on 2141964. After his death, the respondent No. 3 filed suit No. 225 of 1983 for permanent injunction to restrain the petitioner from interfering in the possession of the disputed house wherein the petitioner allegedly resided. The suit was dismissed vide judgment and order dated 921988. After dismissal of the suit, the respondent No. 3 filed an application dated 1731988 under Order XXI Rule 94 for issuance of a sale certificate on the basis of the aforesaid auction sale dated 1931964. The petitioner filed objections against the said application on several grounds including that of limitation. Both the Courts below rejected the objections of the petitioner and allowed the application of the respondent No. 3 vide orders dated 8121989 and 273 1990. Thereafter, the respondent No. 3 made an application under Order XXI Rule 95 for delivery of possession. The petitioner again filed his objection interalia stating that the application was hopelessly barred by time as the application was not made within a period of one year as prescribed under Article 134 of the Limitation Act. Both the Courts below have rejected the objection holding that limitation would run from the date of delivery of sale certificate and thus the application was within time. The Court also held that the petitioner was estopped from raising question of limitation again in proceedings under Order XXI Rule 95 since the same objection has already been rejected while disposing off his application under Order XXI Rule 94.

Learned Counsel for the petitioner has urged that sine quo non to the filing of an application under Order XXI Rule 95 was only that the sale should have become absolute and the limitation would not run from the date the sale certificate is issued. In support of his contention he has relied upon a decision of this Court in the case Sukh Lal v. Ghasi Ram, [AIR 1979 Allahabad 411 and a Division Bench in the case of Babu Lal v. Annapurnabai, [AIR 1953 Nagpur 215], For the proposition that in the facts of the case Article 134 and not Article 136 would apply. He has relied upon the ratio of the Apex Court in the Case of Ganpat Singh v. Kailash Shankar, [AIR 1987 SC 1443].

Before the Court deals with the arguments, it would be appropriate to examine Rule 95 of Order 21 which is quoted below.

�(95) Delivery of property in occupancy of judgment debtor. Where the immovable property sold is in the occupancy of the judgmentdebtor or of some person on his behalf or of some person claiming under a title created by the judgmentdebtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom hemay appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.�

It would be also relevant to quote Article 134.

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.

A joint reading of the two provisions shows that on the application being made by the auction purchaser within a period of one year from the date the sale is made absolute, the Court shall order delivery of possession of the said immovable property under a title created by the auction sale. A Single Judge of our Court in the case of Sukh Lal and the Division Bench of Nagpur in Babu Lal (supra) have unequivocally held that limitation is to be computed from the date on which the sale has become absolute and not from the date the sale certificate is issued. This view is also supported by a Division Bench of the Calcutta High Court in the case of Smt. Anarjan Bibi v. Chandramani, [AIR 1932 Calcutta 75] where it held, after examining the order XXI Rule 94 that the only effect of that is that no order can he made until the certificate has been is sued, and not that an application under either rule should on that account be delayed. Besides on the sale becoming absolute it is more or less within the power of the auction purchaser to get the sale certificate as soon as he wants, because the intention of the legislature as expressed in the wording of Order XXI Rule 94, is to issue the certificate with all convenient speed.....'' In the present case, there is absolutely no reason given by the respondent No. 3 why no effort was made for obtaining the sale certificate within a reasonable time. It is not denied that the sale had become absolute on 2141964 and father of the petitioner died in 1976 i.e. more than a decade after the sale had become absolute. Even respondent No. 3 applied for obtaining sale certificate only on 1731988 i.e. about a quarter of century after the actual auction sale. The contention of the learned Counsel for the respondent that once bar of limitation had been pleaded and decided against the petitioner in the execution proceedings, he cannot be allowed to again raise the bar of the limitation in the execution proceedings, is without any merit. It is not denied that earlier the application was filed with respect to issuance of sale certificate and not possession. The functional facts in disposing oft the application under Order XXI Rule 95 are different and the petitioner was well within his right to have raised the objection of limitation which was clearly applicable and he cannot be estopped by any principle including that of res judicata. In any event, making an application under Order XXI Rule 95 was fresh cause of auction and the petitioner cannot be deprived of raising his objections including on the ground of limitation.

For the reason given above this petition succeeds and is allowed and the impugned orders dated 451991 and 511996 are hereby quashed. No order as to cost.