P. Kuppan vs Jayarama Chetty and another

Rengaswamy, J.—This revision is against the order of the learned Subordinate Judge, Thiruvallur ordering for the delivery of the property to

the court auction-purchaser. The court auction-purchaser, in pursuance of the sale certificate issued in his favour, filed application for delivery in

H.A. No. 72 of 1993 and the judgment-debtor objected for delivery on the ground that he did not file application to take delivery of possession

within one year from the date of confirming the sale as required under Article 134 of the Limitation Act and therefore, the delivery should not be

effected. The learned Subordinate Judge, rejecting the contention of the judgment-debtor has ordered for delivery. Hence this revision.

The learned counsel for the petitioner would contend that the execution Court had ordered for the issue of sale certificate even on 1-10-91 and

therefore the starting point of the limitation is 1-10-91 for taking delivery, according to Article 134 of the Limitation Act but the court auction

purchaser filed the application for taking delivery only in 1993, which is barred by time and therefore, the lower Court ought not to have ordered

for delivery of possession.

On the other hand, the learned counsel for the respondents contended that the sale certificate was issued only on 22-2-1993 and only after the

issue of the sale certificate under Order 21, Rule 95 Code of Civil Procedure, the delivery can be sought for by the Court auction-purchaser and

therefore the petition for delivery was filed within time.

I am able to see from the records that though the Court had ordered for the issue of sale certificate on 1-10-91 itself, actually the sale certificate

was issued only on 22-2-93. Order 21, Rule 94 CPC prescribes no time limit for the issue of the sale certificate to the purchaser. Anyhow, in this

case, as seen from the records, the sale certificate was issued only on 22-2-93 and the Court auction-purchaser is entitled to take delivery of the

property purchased by him, on the strength of the certificate for the sale of the property to him. Rule 95 in Order 21 of Civil Procedure reads as

follows:--

Delivery of Property in Occupancy of Judgment-Debtor.-- Where the immovable property sold is in the occupancy of the judgment-debtor or

of some person on his behalf or of some person claiming under a title created by the judgment-debtor 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 to delivery

to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and if

need be by removing any person, who refused to vacate the same.

From the wording in the Rule 95 that, ""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..."" indicates that only after the issue of the sale certificate, the court auction-purchaser is entitled to ask for

delivery. As mentioned above, when the sale certificate was issued only on 22-2-93, the purchaser could move the court for taking delivery only

after this date. Even though Article 134 of the Limitation Act fixes the period as one year from the date when the sale becomes absolute, under

Order 21, Rule 95, the sale becomes absolute only after the issue of the sale., certificate. For the reason that the Court ordered for the issue of

sale certificate on 1-10-91, it cannot be stated that the sale became absolute on that day itself. Therefore, Article 134 of the Act is subject to

Order 21, Rule 95 Code of Civil Procedure. As the petition for delivery was filed within few months and the delivery was effected on 7-4-93, I

find that the petition was within time and it cannot be taken that the court had ordered for delivery after the lapse of time prescribed under the

Limitation Act. The citation relied upon by the learned counsel for the petitioner in Varadarajan v. Venkatapathi, AIR 1953 Mad 587 may not

have relevancy to this case. In that case, it appears that the sale was confirmed even during the pendency of the petition under Order 21, Rule 90,

Code of Civil Procedure. But in this case, the confirmation of the sale was after the dismissal of Execution Application No. 152 of 1992.

Therefore, I find no error in the order of the learned Subordinate Judge, Thiruvallur, ordering for the delivery of possession to the court auction-

purchaser. Hence this revision is devoid of any merit and is dismissed. No cost.

Revision dismissed.