IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 CRP.No. 1023 of 2007() ---------------------- AGAINST THE ORDER DATED 16/06/2007 IN EA.30/2006 IN EP.50/2001 IN OS.50/2000 of SUB COURT,KATTAPPANA .................... REVN. PETITIONER(S): PETITIONER/ AUCTION PURCHASER ------------------------------- JOHN, S/O.JOSEPH, OTTAPLACKAL HOUSE, VALIYAKANDAM KARA, KATTAPPANA VILLAGE. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA MR.S.A.ANAND RESPONDENT(S): CR. PETITIONER/ JUDGMENT DEBTOR ------------------------- C.V.ELIAS, S/O.VARGHESE, CHANDANASSERIL HOUSE, PARAKKADAVU KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS. MR.VARGHESE C.KURIAKOSE FOR R1 MR.PRAVEEN K. JOY FOR R1 MR.E.M.MURUGAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- C.R.P.NO.1023 OF 2007 ---------------------------- DATED THIS THE 2ND DAY OF MARCH, 2009 O R D E R The revision petitioner is a court auction purchaser in E.P.No.50/2001 in O.S.No.50/2000 on the file of the Sub Court, Kattapana. The property in question was sold in court auction on 25/2/2003. The auction is conducted in respect of 1 acre and 63 cents of land for realisation of Rs.2,25,255/-. The respondent- judgment debtor filed a petition for setting aside the sale, which was dismissed and the sale was confirmed on 11/8/2003 subject to the result of I.P.No.1/2003 pending before the Sub Court, Kattapana in which there was a stay of execution proceedings. 2. I.P.No.1/2003 was filed by the judgment debtor for declaration as insolvent. The execution proceedings and the court auction delivery etc. are subject to the result of the insolvency proceedings. That is the reason why the confirmation of sale was made subject to the result of the I.P.No.1/2003. -2- CRP.No.1023/2007 3. Originally I.P.No.1/2003 was dismissed for default on 28/1/2004. Sale certificate was issued on 10/12/2004. But the I.P. was restored to file on 10/12/2004 and the same was again dismissed on 14/12/2005. The petitioner filed an application on 13/2/2006 under Section 21 Rule 95 of the Code of Civil Procedure for delivery of the property, which was allowed. The respondent-Judgment Debtor filed C.R.P.No.254/2006 challenging the order of delivery. This Court disposed of the C.R.P. directing the execution court to consider the application afresh and pass appropriate orders in accordance with law. Subsequently, the execution court again considered the matter. The learned counsel for the judgment debtor contended that since the application is filed beyond one year, the application for delivery is barred by limitation under Article 134 of the Limitation Act. The execution court held that the court auction purchaser again seek extension of time for filing the application for the reason that the confirmation is subject to the outcome of I.P.No.1/2003. When the Limitation Act prescribes the period from the date when the sale certificate became absolute, whatever -3- CRP.No.1023/2007 be the reasons, the application shall be filed within one year from the date of confirmation of sale. 4. I cannot agree with the reasons stated by the learned counsel for the judgment debtor-respondent in support of the order passed by the court below. If it is a case of confirmation absolute, there is no difficulty for attracting the provisions of the Limitation Act and the auction purchaser had to file an application within one year from the date of confirmation of the order. In this case the auction purchaser is incapable of filing any application. In view of the pendency of I.P.No.1/2003, the auction purchaser was waiting for the outcome of the I.P. If the I.P. is kept pending for years, there is no meaning in filing an application for delivery of the property because the court below cannot order delivery in this case. So the confirmation ordered on 11/8/2003 subject to condition that the sale became absolute only on a future date, i.e. on the date of final disposal of the I.P., namely 14/12/2005. Thereafter, the IP was not neither restored nor prosecuted. So the time supports from 14/12/2005. The application is filed within one year under Section 134 of the -4- CRP.No.1023/2007 Limitation Act. Therefore, the application is within time. The finding of the court below that the pendency of I.P.No.1/2003 is no excuse for extending the period of limitation is totally incorrect. It is not a question of extension of limitation. In this case what is to be examined is the right time by which the court auction purchaser can apply for delivery. The date supports only from the date of result of the I.P. and the court auction purchaser has got one year from the date of disposal of the I.P. 6. In the result, the impugned order is set aside. The execution court is directed to consider the matter and order delivery as expeditiously as possible. Delivery shall be made immediately after 30 days' time granted at the request of the judgment debtor-respondent. C.R.P. is allowed. HARUN-UL-RASHID, Judge. kcv.