IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 CRP.No. 318 of 2005() --------------------- AGAINST THE ORDER DATED 30/11/2004 IN EA 273/04 IN EP 49/00 IN ARC.2024/1987-88 of MUNSIFF MAGISTRATE COURT, PERAMBARA REVN. PETITIONER/PETITIONER: ------------------ VAZHAYIL RADHAKRISHNAN, S/O.KANARAN NAIR, AGRICULTURIST, PERAMBRA AMSOM PILLAPERUVANNA DESOM, KOYILANDY TALUK. BY ADVS. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENTS/RESPONDENTS: ------------- 1. CHIRUTHA, W/O.KADUNGON, RESIDING AT PULIYATHINKAL COLONY, KOZHUKKALLUR AMSOM, ELAMBILADU DESOM, KOYILANDY TALUK. 2. SURESH, S/O.KADUNGON, RESIDING AT ARIMBALA PARAMBA COLONY, KOZHUKKALLUR AMSOM, NIDUMPOYIL DESOM, KOYILANDY TALUK. 3. SIVAN, S/O.KADUNGON, RESIDING AT POOVVARAMMEL COLONY, KOOTHALI AMSOM DESOM, KOYILANDY TALUK. 4. VALIYAPARAMBIL LAKSHAM VEEDU COLONIYIL MANI,S/O.KADUNGON, KARAYAD AMSOM, THIRUVANGAYOOR DESOM, KOYILANDY TALUK. 5. PULIYATHINKAL MEETHAL COLONIYIL GIRIJA, S/O.KADUNGON, KOZHUKALLUR AMSOM, ELAMBILADU DESOM, KOYILANDY TALUK. BY // THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 318 OF 2005 -------------------------------------------- Dated this the 11th day of July, 2008 O R D E R This Civil Revision Petition is filed by the auction purchaser challenging the order dated 30.11.2004 in E.A. No.273 of 2004 in E.P. No.49 of 2000 in A.R.C. No.2024 of 87-88 on the file of the Munsiff Magistrate's Court, Perambra. 2. The property belonging to the judgment debtors was sold in court auction in E.P. No.49 of 2000. The auction was conducted on 7.7.2003 and the sale was confirmed on 15.9.2003. The sale certificate was issued on 23.12.2003. E.A. No.273 of 2004 was filed by the revision petitioner in his capacity as auction purchaser on 26.10.2004 under Order XXI Rule 95 C.P.C. seeking delivery of the property. The court below dismissed the above application finding that as per Article 134 of the Limitation Act, 1963, time starts running from 15.9.2003, the date on which the sale was confirmed and that the application filed after one year from the date of confirmation of sale is not maintainable. C.R.P. NO.318/2005 2 3. The learned counsel appearing for the revision petitioner/auction purchaser contended before this court that the dismissal of the application as not maintainable for the reason that it was filed after one year from the date on which the sale was confirmed is liable to be interfered with. According to counsel, though the sale was confirmed on 15.9.1993, the sale certificate was issued only on 23.12.2003, i.e. after more than three months from the date of confirmation of sale. Counsel further contended that as per Order XXI Rule 95 C.P.C. the right to apply for delivery of the property accrues only after issuance of the sale certificate by the court and, hence, the application was filed within time. Counsel also contended that the reference to and reliance placed by the court below on the decision of the Supreme Court reported in Ganpat Singh v. Kailash Shankar, A.I.R. 1987 S.C. 1443 is not correct. It is submitted that the question whether the time taken for issuance of the sale certificate has to be excluded or not was not examined by the court below and, therefore, the dismissal of the present application is not sustainable. 4. A reading of Order XXI Rule 95 C.P.C. will make it clear that the court can order delivery of the property only after issuance of the sale certificate under Rule 94. At the same time, as per Article 134 of the C.R.P. NO.318/2005 3 Limitation Act, the period of limitation would start running from the date on which the sale becomes absolute. According to counsel, the conflict between these two provisions can be resolved only by a harmonious interpretation of Article 134 of the Limitation Act and Order XXI Rule 95 C.P.C. and that a contrary interpretation would result in gross injustice. Order XXI Rule 95 C.P.C. 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 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 refuses to vacate the same. Article 134 of the Limitation Act fixes the period as one year from the date when the sale becomes absolute. The Madras High Court in the decision reported in P.Kuppan v. Jayarama Chetty, A.I.R. 1996 Madras 167 held as follows: "Even though Article 134 of the Limitation Act fixes the period as one year from the date C.R.P. NO.318/2005 4 when the sale becomes absolute, for delivery of property in occupancy of judgment-debtor and under Order 21 Rule 95, the sale becomes absolute only after the date of issue of the sale certificate and not from the date of order for issue of sale certificate. Therefore, Article 134 of the Act is subject to Order 21, Rule 95, Code of Civil Procedure." 5. I am of the view that the principles laid down by the Madras High Court leads to a harmonious interpretation of both provisions. In this case, the property was put to sale in court auction and the auction purchaser purchased the same. There was no move on the side of the judgment debtors for setting aside the sale. Subsequently, the auction purchaser remitted the entire sale consideration and stamp duty for getting the sale certificate. There was no claim petition under Rules 89, 90 or 91 of Order XXI C.P.C. The application for delivery was filed after the period of one year prescribed under Article 134 of the Limitation Act. So far as the auction purchaser is concerned, if the property is not delivered to him even after the sale is confirmed, gross injustice will be caused to him. 6. In the facts and circumstances of the case, I am of the view that even though Article 134 of the Limitation Act fixes the period as one year from the date on which the sale becomes absolute, for delivery of the property in occupancy of the judgment debtor under Order XXI Rule 95 C.R.P. NO.318/2005 5 C.P.C., the application seeking delivery can be filed only after the issuance of the sale certificate. Therefore, the application filed for delivery within one year from the date of issuance of the sale certificate is within time. In that view, it can only be held that Article 134 of the Limitation Act is subject to Order XXI Rule 95 C.P.C. as laid down by the Madras High Court in the decision cited supra. 7. In the result, the impugned order is set aside. E.A. No. No.273 of 2004 in E.P. No.49 of 2000 in A.R.C. No.2024 of 87-88 on the file of the Munsiff Magistrate's Court, Perambra filed by the revision petitioner/auction purchaser for delivery of the property is allowed. The court below shall take further steps forthwith. The Civil Revision Petition is allowed as above. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.318/2005 6 HAURN-UL-RASHID, J. C.R.P. NO. 318/2005 O R D E R 11th July, 2008