Uppathungal Joseph vs Cannannore Co-operative Land Mortgage Bank

K. P. Radhakrishna Menon, J.—Petitioner is the respondent in E. P. 16/88, an application filed by the auction purchaser for delivery of the property in dispute. The sale certificate was issued on 20-4-1985. Thereafter in 1988, that is, after a lapse of three years, the date on which the sale certificate was issued the respondent filed the above E. P under Order 21 Rule 95 read with Section 17 of the Co-operative Land Mortgage Banks Act, for delivery of the property. The petitioner resisted the said petition. The main ground urged in this regard is that the petition is barred by limitation. The court below after considering the various aspects of the case has rejected the above plea of the petitioner by the order under challenge. The learned counsel for the petitioner argues that the execution petition filed after a lapse of three years of the date on which the safe; certificate was issued is barred by limitation In support of this contention, he made reference to Article 134 of the Limitation Act. Article 134 of the Limitation Act provides that any petition for delivery of possession by a purchaser of an immovable property at a sale in execution of a decree shall be filed within one year from the date on which the sale becomes absolute. The sale in this case became absolute on 20-4-1985. The petition therefore should have been filed within one year there from. The court below though took cognisance of this argument, was of the view that the execution petition is one that falls under Article 136 of the Limitation Act. The period of limitation prescribed by this Article is 12 years. In support of this view, the court below has relied on a decision of this court in Varghese v. Muthukulam Service Co-operative society (1980 K. L T. 400).

This court in that case was considering the claim of an and on purchaser within the meaning of Rule 84 of the Co-operative Societies Rules 1969, for delivery of the property pursuant to the sale certificate issued in his favour. Construing the said Rule, this court held thus:-

.........The Rule further provides that the court of competent jurisdiction shall proceed in the manner it is allowed to proceed in a case of a decree for possession if given to the purchaser. This is the only Rule under which the auction-purchaser in a sale conducted by the Registrar can come to a civil court for help to get possession of the property. It is this Rule that his been invoked by the. auction-purchasers in all these cases, though in some they have not in so many words quoted the Rule under which they have moved '' the Civil Court. As the Rule provides that the auction-purchaser must be treated as a holder of a decree for possession, Article 134 of the Limitation Act has no application. That applies only to the auction-purchaser in a sale conducted by the civil court to apply for possession through a civil court and the starting point of limitation is one year from the date when the sale became absolute. That is not the case here. Hence Article 134 has no application........."

(emphasis supplied)

As already noted the application of the respondent for delivery of the property pursuant to the sale certificate is one filed u/s 17 of the Co-operative Land Mortgage Banks Act read with Order 21 Rule 95 C. P. C. The wordings of this Section are different from the wordings of Rule 84 of the Co-operative Societies Rules. Here the words relevant to be considered are "on the application of the purchaser, order 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". Under Rule 84 what is stated is that the auction purchaser must be treated as a holder of a decree for possession. A holder of a decree for possession is different from the auction purchaser entitled to delivery of the property, within the meaning of Section 17 of the Act. It should in this connection be remembered that such an auction purchaser, that is the auction purchaser coming u/s 17 of the Act, to get delivery of the property pursuant to the sale certificate need not initiate proceedings contemplated under Article 136; it is enough if he applies for delivery of the property under Order 21 Rule 95. That is not the case with the auction purchaser within the meaning of Rule 84 of the Co-operative Societies Rules. The auction purchaser in the said Rule is equated with a decree-holder and therefore the proceedings initiated by him to recover possession of the property pursuant to the sale certificate, as observed by ibis court, is one falling under Article 136. The above ruling of this court relied on by the court below to non-suit the petitioner therefore has no application to a case which falls under Sec. 17 of the Act. The auction purchaser in order to get delivery of the property needs file a petition, as already noted, under Order 21 Rule 95 C. P. C. Such a petition in my view, is one that falls under Article 134 of the Limitation Act. If that be so, such an application for delivery requires to be filed within one year of the date on which the sale become absolute. The petition from out of which this revision arises therefore is barred by limitation.

The order under challenge accordingly is set aside. The C. R. P is allowed to the extent indicated above.