IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 CRP.No. 26 of 2010 ---------------------------- [E.A. NO.104/2009 IN E.P. NO. 184/2004 IN OS.NO.166/2000 OF MUNSIFF'S COURT, ALATHUR] .................... REVISION PETITIONER/RESPONDENT/JUDGMENT DEBTOR/DEFENDANT: --------------------------------------------------------------------------------------------------------- ABDUL AZEEZ (ABDUL ASSIS), S/O.HAMEED, AFSAL MANZIL, PALLIPARAMBU, KATTUSSERY AMSOM, ALATHUR TALUK. BY ADVS. MR.SAJAN VARGHEESE .K, MR.LIJU. M.P. RESPONDENT/PETITIONER/DECREE HOLDER/PLAINTIFF: ----------------------------------------------------------------------------------- K.T.IPE, S/O.THARU, KOLADI VEEDU, PALAYAM, VADAKKANCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. MR.JOHN JOSEPH (ROY). THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON 19/02/2010 PASSED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- C.R.P. No. 26 of 2010 ------------------------------------- Dated 19th February 2010 Order In this Petition under S.115 of the Code of Civil Procedure, the petitioner assails the order of the Munsiff's Court, Alathur in EA No.104/09 in EP No.184/04 in OS No.166/00, by which delivery of the property sold was ordered. The parties and exhibits are hereinafter referred to, as they are available before the Court below. 2. The respondent is the decree holder and the petitioner is the judgment debtor. Execution proceedings were taken out and the property belonging to the judgment debtor was brought to sale. The sale was held on 29.03.2006 and it was confirmed on 18.12.2006. The respondent filed a petition under Order XXI Rule 90 CPC, which was dismissed on 16.12.2006. 3. Against the order dismissing his application, the respondent preferred CMA 16/07. But, no stay was granted in the CMA and it was disposed of on 24.09.2008. The petitioner before the Court below sought for delivery of the property after the disposal of the CMA, by filing EA No.104/09 on 23.03.2009. CRP 26/10 2 Accordingly, the sale was confirmed in his favour and the sale certificate was issued to him. 4. The respondent had resisted the claim of the decree holder, pointing out that the application for delivery was barred by limitation. It was pointed out by him that the sale having been confirmed and becoming absolute on 18.12.2006, the application for delivery ought to have been filed within one year thereafter and the application filed for delivery on 23.03.2009 is barred by limitation. 5. The Court below considered the rival contentions and came to the conclusion that going by Article 134 of the Limitation Act, the period begins to run only after the appeal filed by the judgment debtor against the order passed on his application to set aside the sale has been disposed of. It was held that the CMA was disposed of on 24.09.2008 and therefore, the petition for delivery filed on 23.03.2009 is within time and accordingly, the Court below passed an order for effecting delivery. 6. The learned counsel for the revision petitioner raised the very same contentions urged by him before the Court below. It was vehemently contended that the Court below was CRP 26/10 3 not justified in computing the period of one year from the date on which the CMA was dismissed. It was also pointed out that the time begins to run from 18.12.2006, the date on which the sale was confirmed and the sale became absolute. Since there was no stay of proceedings in the CMA, the time continues to run and it was over, much before the petition for delivery was filed. It was therefore, contended that the order impugned cannot be sustained in law. 7. The learned counsel for the respondent on the other hand, pointed out that the Court below was perfectly justified in coming to the conclusion that the time begins to run only after the disposal of the CMA. Till then, it could not be said that the order confirming the sale has become final and absolute. It is further pointed out that the Court below has considered the matter in detail and has relied on several decisions, which hold that the time begins to run only after the disposal of the appeal, if any, filed against the order seeking to set aside the sale. 8. The relevant provision which arises for consideration is Order XXI Rule 92 CPC, which reads as follows : Order XXI Rule 92 : Sale when to become absolute or be set aside - (1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such CRP 26/10 4 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 of such property, the Court shall not confirm such sale until the final disposal of such claim or objection. (2) 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 sixty 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. Provided further that the deposit under this sub- rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002. (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made. CRP 26/10 5 (4) 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. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree holder to refund the money to the auction purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the state at which the sale was ordered.” The learned counsel for the petitioner pointed out the distinction between Rule 92(1) and its proviso. It was contended that in the former portion, all that is said is that on confirmation of the sale, the sale shall become absolute. It was, therefore, pointed out that as the sale was confirmed on 18.12.2006, automatically, the sale has become absolute and final on 18.12.2006. It was also contended that since there was no stay in the appeal filed by the judgment debtor, it could not be said that the running of the time was arrested. The learned counsel drew support from the proviso, which says that “Court shall not confirm such sale until the final disposal of such claim petition.” According to the learned counsel, the words 'final disposal' is absent in the former portion and therefore, the view taken by the Court below cannot be sustained. CRP 26/10 6 9. The above provision has come up for consideration on several occasions. Before going into it, one matter needs to be referred to. The learned counsel for the revision petitioner pointed out that going by the provisions of Order XLI and Order XLIII CPC, the provisions are very clear to the effect that the mere fact that an appeal is filed does not cause stay of execution proceedings. Unless there is a stay granted by the Appellate Court, the order is executable and the said principle has to be applied to the case on hand also. 10. The contentions of the revision petitioner are devoid of any merit. It is by now well settled that the termini-a- quo is the date when the sale becomes absolute. The relevant Article in the Limitation Act, is Article 134, which reads as follows : =========================================================== “Description of suit Period of Time from which Limitation period begins to run 134. For delivery of possession by a purchaser of immovable One Year When the sale becomes property at a sale in execution absolute” of a decree ================================================ 11. It is well settled that the time begins to run from the date of confirmation of the sale and when it becomes CRP 26/10 7 absolute and not from the date of issuance of the sale certificate. It has been consistently held that, when the sale becomes absolute, has to be read not only with reference to the provisions of Order XXI Rule 92 CPC, but also with reference to other material sections and orders of the Court including those relating to appeal. If there is an appeal pending, the sale becomes absolute only after the appeal is disposed of. 12. The provisions relied on by the petitioner referring to Orders XLI and XLIII CPC can have no application in the present context. True, there is some distinction between the main provision under Order XXI Rule 92 and its proviso. But, it has been the consistent view that until all the proceedings taken by the judgment debtor in relation to the sale are over, the time contemplated under Article 134 of the Limitation Act does not begin to run. 13. In fact, the issue no longer res integra, in view of the decisions reported in Maganlal v. Jaiswal Industries, Neemach (AIR 1989 SC 2113), Ouseph Joseph v. Thresia (1998(2) KLT 854 and Haneefa v. United Finance Corporation (2006(1) KLT 416). One has to notice a contention taken by the revision petitioner at this juncture. The learned CRP 26/10 8 counsel for the petitioner pointed out that in all the above decisions, there was an order of stay and that makes all the difference. 14. The above contention does not appear to be quite correct. True, in one of the cases, there was indeed, a stay. But the principle did not turn on the question whether there was a stay in the case. For understanding Order XXI Rule 92 CPC, it is only sufficient to refer to the decision in Haneefa v. United Finance Corporation (supra) wherein it is held as follows : “Where there is no such application to set aside the sale, O XXI R.92 obliges the court to pass an order confirming the sale and thereupon the sale shall become absolute. But where there is an application for setting aside the sale and such application is eventually rejected, then the passing of an order confirming the sale is postponed till the rejection of the application to set aside the sale. This rejection may take place either in the executing court or in the appellate court to which the matter might be carried. Where the sale of immovable property has become absolute consequent on the passing of an order confirming the sale under O.XXI Rule 92 CPC , then O.XXI R.94 CPC enjoins that the court shall grant a sale certificate to the purchaser and such certificate shall bear the date on whcih the sale became absolute. Thus, even if a sale certificate is actually issued to the purchaser on a date subsequent to the CRP 26/10 9 date on which the order confirming the sale is passed under O.XXI Rule 92(1) CPC, by virtue of the mandate under O.XXII R.94 CPC, the sale certificate issued subsequently, shall bear the date on which the sale became absolute, which will ordinarily be the date on which the sale was confirmed. Then, by virtue of the fiction created by S.65 CPC, the vesting of the property in the court auction purchase relates back to the date of sale and not to the date when the sale became absolute. An application to set aside the sale is filed either under R.89 or R.90 or R.91 of O.XXI CPC or where the court auction sale has been effected pending a claim or objection to an attachment, then it may not be possible for the court to pass an order confirming the sale immediately in view of O.XXI R.92 CPC. Such an order will have to await the final result of the application to set aside the sale or the claim or objection to the attachment. Even in a case where an application to set aside the sale or a claim or objection to attachment is either allowed or rejected by the executing court, the matter may not end there. Such an order which is appealable under O.43 CPC might be challenged by the aggrieved party by filing an appeal. In those cases, the one year period of limitation under Art.134 of the Limitation Act would start running only from the date of the appellate order where such appeal is dismissed.” In the light of the principles contained in the above decision, the contentions taken by the revision petitioner cannot be sustained. CRP 26/10 10 The Court below was perfectly justified in ordering delivery of the property in pursuance of the petition filed by the decree holder. In the result, this Writ Petition is devoid of any merit and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta CRP 26/10 11