Karnail Singh vs Hari Ram and Others

R.L. Anand, J.—Karnail Singh son of Inder Singh, resident of village Pinjoli, Tehsil and District Rupnagar (auction purchaser) has filed the present revision and it has been directed against the order dated 15.9.1987 passed by the Court of Sr. Sub-Judge, Rupnagar, who dismissed the application of the petitioner Under Order 21 Rule 95, C.P.C. for the delivery of the possession of the property which was purchased by him vide sale certificate dated 25.2.1984.

The brief facts of the case are that the petitioner filed an application Under Order 21, Rule 95, C.P.C. and wanted to take the actual physical possession of the property purchased by him. The property was sold in execution of the decree passed sometime in the year 1973 in a suit titled ''Midha Singh v. Hart Ram''. The property was purchased by the petitioner in public auction purchaser under the orders of the court on 21.8.1980. The sale was confirmed in his favour by the Sr. Sub-Judge, Rupnagar, on 25.10.1982 and, finally, the sale certificate was issued in favour of the petitioner on 25.2.1984. The application for taking the possession was moved on 28.10.1986. The petitioner states that his application dated 28.10.1986 is within limitation as Devki and Mohindro, daughters of Shero and sisters of Hari Ram, Judgment Debtor, filed a suit No. 33 of 4.3.1984 for injunction in the Court of Sub Judge, 1st Class, Rupnagar in which ad interim injunction was granted to them on the same day against the petitioner. The suit was ultimately decreed in favour of Devki and Mohindro as a result of which the petitioner had to file an appeal. In the suit appeal, the learned Additional District Judge, Rupnagar (appellate Court) vacated the injunction on 24.10.1986 and allegedly directed the petitioner to proceed with the matter for getting the possession of the property purchased by him in the auction. In this view of the matter, the petitioner filed the application Under Order 21, Rule 95, C.P.C. on 28.10.1986 for the delivery of the possession.

The application was contested by Hari Ram, Judgment Debtor, on the ground that it is barred by limitation as it has not been filed within one year from the date of the confirmation of the sale. It was pleaded by Hari Ram that no injunction restraining the petitioner was issued vide which the petitioner was injuncted upon from taking the possession of the judgment debtor. The only injunction granted was with respect of the shares of Devki and Mohindro and not in respect of the entire property in question. Devki and Mohindro had only 2/5th share in the property. The auction purchaser did not take any proceedings for getting the possession within one year from the date of the confirmation of the sale. Thus, the present application Under Order 21, Rule 95, C.P.C. is barred by limitation. Even otherwise, the learned Additional District Judge, Rupnagar, had ordered the petitioner to deposit Rs. 1,300/- before taking the possession of the share in the property of Devki and Mohindro. The auction purchaser had not deposited the amount of Rs. 1,300/- and for that reason also, the application for taking the possession is not legally maintainable.

The petitioner filed a rejoinder to the written reply of Hari Ram and submitted that the property which was purchase by him in the auction was indivisible, therefore, the possession with respect to 3/5th share could not be taken by him. The application is within limitation because the matter was decided on 24.10.1986 by the Court of Addl. Distt. Judge, Ropar, in which compromise had taken place between him and Devki and Mohindro and, therefore, the present application has been rightly filed on 28.10.1986 within limitation.

From the above pleadings of the parties, the executing court framed the following issues for the disposal of the application"-

"1) Whether the application for delivery of possession is within time? Onus on the parties.

2) Relief."

Since the matter was legal, the parties did not led any evidence on the above issues and for the reasons given in paras 7 to 9 of the impugned judgment dated 15.9.1987, the executing Court held that the application dated 28.10.1986 filed by the petitioner is patently time barred. Paras 7 to 9 of the judgment of the executing Court, read as under:-

The sole point which this Court is called upon to determine is as to when in fact the sale became absolute in this case so that the period of limitation can be reckoned there from. The admitted facts are that the applicant purchased the property in question in an open auction on 21.2.1980. This property consisted of house with a factory situated in village Thauna, Tehsil Rupnagar. This sale was confirmed by the Court on 25.10.1982 and sale certificate was issued on 25.2.1984. It is also not disputed that Devi and Mohindro the sisters of Hari Ram J.D. filed a suit for injunction on 4.3.1984 in which the Court of Sub Judge, 1st Class, Rupnagar granted ad interim injunction on 4.3.1984 restraining the applicant Karnail Singh from dispossessing Devki and Mohindro from the joint possession of the property in dispute till further orders. This order was confirmed by the Court vide Ex.A-1 on 19.5.1983. Ultimately the suit was decided by the Court of Sub-Judge, 1st Class, Runagar on 7.12.1983 wherein the applicant was directed not to dispossession Devki and Mohindro from joint possession of the property in dispute. The copy of the judgment is Ex.A-2 on the file, the judgment in appeal of learned Additional District Judge, Rupnagar is Ex.A-3. It appears that a compromise between the parties had taken place and the applicant had agreed to pay Rs. 1,300/- to Devki and Mohindro with respect of their shares. Now according to the applicant his application under Order 21, Rule 95 C.P.C. is within limitation in view of Article 134 of the Limitation Act because it was filed on 28.10.1986 i.e. four days after the decision of the learned Addl. District Judge on 24.10.1986. I may state here itself that there is no dispute between the parties for purposes of limitation of this application. It is Article 134 of the Limitation Act which applies. The learned counsel for the applicant has submitted that the sale became absolute only on 24.10.1986 when the matter agitated by Devki and Mohindro who are the real sisters of J.D. Hari Ram was finally settled by the learned Additional District Judge, Rupnagar on 24.10.1986. If it were so there would absolutely not be any difficulty in saying that the application is within limitation. But the matter is not as simple as that. The learned counsel for the Objector J.D. submits that in fact the sale in favour of the applicant became absolute on 25.10.1982 when it was confirmed by the Court. He further submits that even the sale certificate had been issued on 25.2.1984 and yet the application had not cared to come to the Court within a period of one year and, therefore, his instant application is time barred.

As I have observed above we have to see when the sake became absolute so that from that date limitation can be worked out. The learned counsel for the application has placed strong reliance on AIR 1934 134 (Privy Council) . In addition to this the rulings relied upon for the applicant are Mani Devi and Others Vs. Ram Prasad and Others, and Bishun Prasad Vs. The Central Bank of India and Others, . In addition to these ruling Kamakshi Ammel and Anr. v. Arukkani Ammal and Anr. AIR 1957 Mad 440 has been pressed into service by the applicant. Un-doubtedly these rulings deal with the matter regarding the Sales becoming absolute in executing proceedings. It would not be of any benefit if I refer to these rulings individually because, by and large they have dealt with Article 134 of the C.P.C. and have ruled that while determining "when the sale becomes absolute" within the meaning of article 134 regard must be had not only to the provisions of Order 21, Rule 92 of the C.P.C. but also to the other material sections and orders of the Court. It is only when proceedings started during the course of execution come to a final termination that it can be said that the Court sale has become absolute. In fact the three later ruling have also followed AIR 1934 Privy Council 134 (supra) where such a ruling has been laid down. I think the matter has been set at rest by the Hon''ble Supreme Court in " Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, . In this latest authority of the Highest Court of the country the applicability of Article 134 and 136 has been discussed and it is also ruled as to when a sale can be said to have become absolute. The Hon''ble Supreme Court has discussed AIR 1934 134 (Privy Council) and the other rulings of various High Courts. The relevant paras for our purposes are re-produced as under:-

He has, however, sought to support the conclusion of the learned Judge of the High Court that the application for delivery of possession of the property is not barred by limitation on another ground which will be stated presently under Order XXI, Rule 92 where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. It is submitted by the learned counsel that it is not correct that the sale becomes absolute only under the circumstances as mentioned in Rule 92, and that apart from the provisions of Rule 89, Rule 90 and Rule 91 of Order XXI of the Code, an auction sale can be challenged on grounds other than those mentioned in the said Rules. Counsel submits that if an application for setting aside sale is made and disposed of, the sale will become absolute after the disposal of such application, even though the application is not one as contemplated by Rule 89, 90 or 91 of Order XXI of the code.

In this connection, the learned counsel has drawn our attention to an application for setting aside the sale made by the 4th judgment-debtor on January 27, 1979 on grounds other than those mentioned in Rule 89, 90 or 91. But the said application was dismissed by the learned District Judge on July 21, 1979. It is submitted by the learned counsel that on the disposal of that application on July 21, 1979, the sale become absolute and the decree-holder respondent having filed the application for delivery of possession on July 17, 1980 that is, within one year from July 21, 1979, it should be held that the application was quite within the period of limitation as prescribed by Act, 134, Limitation Act. In support of the contention, the learned counsel has placed reliance upon a decision of the Privy Council in AIR 1934 134 (Privy Council) . In that case in interpreting the words "when the sale become absolute" in Article 180 of the old Limitation Act, 1908, the Privy Council observed as follows:-

"Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale become absolute" in Article 180, Limitation Act regard must be had not only the provisions of Order 21, Rule 92(1) of the Schedule to the Civil Procedure Code, but also to the other material sections and orders of the code, including those which relate to appeals from orders made under Order 21, Rule 92(1). The result is that when there is an appeal from an order of the subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 Limitation Act until the disposal of the appeal, even though the subordinate Judge may have, confirmed the sale, as he was bound to do, when he decided to disallow the above mentioned application."

We may now consider the above contention of the learned counsel for the respondent decree-holder. It has been already noticed that on January 2, 1979 while dismissing the application of the judgment-debtor under Order XXI, Rule 90 of the Code, the learned District Judge also confirmed the sale. The said order of the learned District Judge confirmed the sale. The said order of the learned District Judge confirming is binding not only on the judgment-debtor, who made the application under Order 21, Rule 90, but also on all other parties to the execution proceeding including the 4th judgment-debtor. Accordingly, there can be no doubt that the application filed by the 4th Judgment-debtor praying for the setting aside of the sale on grounds other than those mentioned in Rule 89, 90 and 91, was not maintainable after the confirmation of the sale. Indeed, by the order dated July 21, 1979 the learned District Judge while dismissing the application of the 4th Judgment-debtor observed that after the confirmation of the sale, the court was not authorised to entertain the application. We do not think that the decision of the Privy Council in Chandra Mani''s case (supra) lends any support to the contention of the learned counsel for the respondent decree-holder that an auction sale can be set aside even on grounds other than those mentioned in Rule 89 , 90 and 91. All that has been ruled in that decision is that in construing the meaning of the words "when the sale become absolute" in Article 180 of the old Limitation Act, regard must be had not only to the provisions of Order XXI, Rule 92(1) of the Code, but also to the other material sections and orders of the Code including these which relate to appeals from orders made under Order XXI, Rule 92(1). No provision of the Code has been pointed out to us under which a sale can be set aside apart from the provisions of Rule 89, 90 and 91 of Order XXI of the Code. There can be no doubt that when an application for setting aside the sale is made, the order passed by the executing Court either allowing or dismissing the application will be final and effective subject to an appeal that may be made under the provisions of the Code. It is inconceivable that even though no appeal has been filed against an order dismissing an application for setting aside the sale, another application for setting aside the sale can be made without first having the order set aside. Such an application will be bared by the principle of res judicata. In the circumstances, there is no merit in the contention made on behalf of the respondent decree-holder that the application for delivery of possession having been made within one year of the dismissal of the application of the 4th judgment-debtor for setting aside the sale, it was within the period of limitation as prescribed by Article 134, Limitation Act."

The Hon''ble Supreme Court discussed in the above reproduced case the case rulings cited on behalf of the applicant."

Aggrieved by the order dated 15.9.1987, the present revision by Karnail Singh.

I have heard Mr. K.S. Grewal, Advocate, on behalf of the petitioner and Mr. P.S. Kang, Advocate, for the respondents and with their assistance have gone through the record of this case.

Article 134 of the Limitation Act, 1963 is equivalent to Article 180 of the Limitation Act, 1908. In this case, the rights of the parties are supposed to be governed by virtue of Article 134 of the Limitation Act, which talks of delivery of possession by a purchaser of immovable property at a sale in execution of a decree and the period prescribed for such application is one year "when the sale becomes absolute".

In order to determine as to when the sale becomes absolute under the various provisions of the Civil Procedure Code, I will have to refer to the provisions of Order 21, C.P.C. and the first provision which can be referred with advantage is Order 21, Rule 89, C.P.C. which gives the right to the person for setting aside of the sale on deposit. As per this provision, "Where immovable property has been sold in execution of a decree any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court, - (a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder."

A reading of the above would show that even the judgment debtor has the right to approach to the executing Court with a prayer for the setting aside of the sale on the deposit of an amount in excess of 5 per cent of the purchase money, etc.

The second provision is Order 21, Rule 90, C.P.C. where a sale can be set aside on the ground of irregularity or fraud. As per Order 21, Rule 90, C.P.C. where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of irregularity or fraud in publishing or conducting it. No such sale can be set aside unless the applicant satisfies that he has suffered a substantial injury by reason of such irregularity or fraud.

Under Order 21, Rule 91, C.P.C. the purchaser has also the right to make an application to set aside the sale on the ground that the judgment-debtor has no saleable interest in the property which was ordered to be sold.

Apart from that, there is one more provision which can be taken notice of by this court and the same is section 47, C.P.C, which states that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Then, we have to switch over to the major provisions under which the rights of the parties can be viewed i.e., Order 21, Rule 92, C.P.C. which says when the sale becomes absolute or be set aside. According to this provision, where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment or, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.

According to sub-rule (2) of Order 21, Rule 92, C.P.C. where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the court, the Court shall make an order setting aside the sale provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

Sub-rule (3) of Order 21, Rule 92, further says that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

As per sub-rule (4) of Rule 94, C.P.C. where a third party challenges the judgment-debtor''s title by filing a suit against the auction-purchaser the decree-holder and the judgment-debtor shall be necessary parties to the suit.

The submission of the counsel for the petitioner is that the auction purchaser could not take the possession of the property in dispute as he was injuncted upon by the Civil Court not to take the possession of a suit filed by Devki and Mohindro who claimed 2/5th share in the property. Moreover, the suit of Devki and Mohindro was decreed by the trial Court and an injunction was granted against the petitioner and that litigation, ultimately, came to an end on 24.10.1986 when a compromise had taken place between the petitioner and the sisters of Hari Ram, vide which it was agreed upon that the petitioner could take the possession of the entire property on payment of Rs. 1,300/-to Devki and Mohindro and, in these circumstances, it was open to the auction purchaser to file the execution within one year from the date when the order was passed in the Court of Additional District Judge, Ropar, and, in this view of the matter, the present application for delivery of the possession which was filed on 28.10.1986 is within limitation. In support of his contention, the learned counsel for the petitioner has mainly based reliance upon AIR 1934 134 (Privy Council) , in which it has been held as follows:-

"In construing the meaning of words "when the sale becomes absolute" in Article 180 regard must be had not only to the provisions of Order 21, Rule 92(1) but also to the other material sections and orders of the Code including those which relate to appeals from orders made under Order 21, Rule 92(1)".

Reliance was also placed by the learned counsel for the petitioner on Bishun Prasad Vs. The Central Bank of India and Others, , in which similar proposition of law was reiterated. Yet reliance was placed upon Sukh Lal Vs. Ghasi Ram, and Govindrao Sopanrao Kadam v. Gopinath and Anr., A I.R. 1994 Bombay 183.

On the contrary, it was submitted by the learned counsel for the respondent that in this case the limitation will start from the date when the sale became absolute. The sale was confirmed on 25.10.1982 and, in these circumstances, the present application is hopelessly barred by limitation. The learned counsel for the respondent even submitted that the granting of the sale certificate on 25.2.1984 in favour of the petitioner will not give him any cause of action because the moment the sale is confirmed, it becomes absolute and the issuance of a sale certificate is more or less an administrative act on the part of the executing Court and if it is assumed for the sake of arguments that the limitation would run from 25.2.1984, still the present application is barred by limitation.

After considering the rival contentions of the parties, I am of the considered opinion that the case law which has been relied upon by the counsel for the petitioner is not helpful to him. If we reach the provisions of Order 21 Rules 89, 90, 91 and 92, along with section 47, C.P.C. there will be a clear distinction between the parties to the suit and the strangers to the suit. If an application is moved u/s 47, C.P.C. by a Judgment-debtor or a judgment-debtor wants to make an application Under Order 21, Rule 89, C.P.C. for setting aside the sale on deposit of the extra amount or on the ground of irregularity or fraud Under Order 21, Rule 90 or if the purchaser wants to get the sale set aside Under Order 21, Rule 91 on the plea that the judgment-debtor had no saleable interest, such persons are virtually parties to the suit. If no objections are filed u/s 47 or no application is moved by the judgment- debtor Under Order 21, Rules 89 and 90, C.P.C. the executing Court is bound to make the sale absolute Under Order 21, Rule 92(1), C.P.C. If the auction purchaser does not make any application Under Order 21 Rule 91, C.P.C. again, the executing Court is bound to make the sale absolute Under Order 21, Rule 92, C.P.C. Therefore, the Legislature in its wisdom has made a clear distinction of the rights of the judgment-debtor, auction purchaser, decree-holder and that of a third person. Right to acquire possession and remedy to file an execution application are two separate aspects. In this case, Devki and Mohindro filed a suit by alleging that they had 2/5th share in the property which was sold in auction and the sale is not being vis-a-vis their interest. To a limited extent, an injunction was issued against the auction purchaser not to disturb their symbolic possession to the extent of 2/5th share. The auction purchaser was never injuncted upon from filing the execution application Under Order 21, Rule 95, C.P.C. for taking of the possession. His remedy to take the possession was never debarred. The sale became absolute on 25.10.1982 when it was confirmed by the Senior Sub-Judge, Ropar, and, in these circumstances, as per. Article 134 of the Limitation Act, the present application could have been filed within one year, i.e., upto 25.10.1983, but unfortunately., it has been filed in the year 1986 and, thus, it was hopelessly barred by limitation.

The case law which has been relied upon by the counsel for the petitioner talks of those litigations where the judgment debtor had made an application either Under Order 21, Rule 89 or Under Order 21, Rule 90, or u/s 47, C.P.C. In such an eventuality, the Hon''ble Privy Council held that till rights of the judgment-debtors are finally disposed of and decided, the limitation Under Order 21, Rule 95 will not run for the disadvantage of the auction purchaser till the litigation is finally disposed of irrespective of the fact that the sale has been confirmed. The reason is very obvious Under Order 21, Rule 92, C.P.C. the sale has been confirmed the moment the procedure Under Order 21, Rules 89, 90 and 90 is or is not complied with. The executing Court cannot search the heart of the judgment-debtor as to whether he would adopt the remedies as provided to him Under Order 21 Rules 89, 90 or 91, C.P.C. therefore, the executing Court is bound to confirm the sale and make it absolute when no application is made Under Order 21 Rules 89, 90 or 91 or where such applications are made and disallowed. Here Devki and Mohindro were third parties and they challenged the sale on the ground of title by alleging that they had 2/5th share in the property and an injunction was granted in their favour that they should not be dispossessed to the imitated extent of 2/5th share. The civil Court never debarred the auction purchaser from filing the application Under Order 21, Rule 95, C.P.C. In these circumstances, it was obligatory upon the auction purchaser to file the application for the delivery of the possession within one year from the date of the confirmation of the sale. The judgment of the Hon''ble Privy Council deals with a case when an application was made for setting aside the sale on behalf of the judgment-debtor and in that context the Hon''ble Privy Council was pleased to hold that the sale would not become absolute within the meaning of Article 180 until the disposal of the appeal even if the Subordinate Judge may have confirmed the sale which he was bound to do when he decided to disallowed the above mentioned application.

The judgment of the Hon''ble Patna High Court was in the context of the suit filed Under Order 21, Rule 63, under the old C.P.C. similarly, the judgment of the Hon''ble Allahabad High Court referred to above was dealing with a case of objections filed by the judgment debtor u/s 47, C.P.C.

On the contrary the Hon''ble Supreme Court in Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, , clearly spelled out that the application for the delivery of the possession of the property purchased by the auction purchaser in auction sale in execution of the decree must be made within one year from the date when the sale became absolute.

In this view of the matter, 1 do not see any illegality in the impugned order dated 15.9.1987 and dismiss this revision with no order as to costs.