Case: United Finance Corporation Vs. M.S.M. Haneefa (Dead) Through Lrs

2. Brief facts which led to filing of this appeal are as under:-The appellant/Corporation-decree holder filed a suit for realisation of the suit claim and the said suit was decreed for a sum of Rs.2,72,100/- along with interest. In execution of the decree, the property of respondent/judgment-debtor was auctioned on 27th October, 2001 and the same was purchased by the appellant/decree-holder himself. The appellant/decree holder purchased schedule item No.2 property to an extent of 1 acre and 50 cents comprised in Survey No.458/1 of Parassala Village along with the building situated therein. The sale was made absolute on 1st June, 2002. Sale certificate was issued to the appellant on 17th March, 2003. In the meanwhile, the first respondent/judgment-debtor filed an application to set aside the auction sale (Order XXI Rule 90 C.P.C.) and also another application for appointment of the Commissioner to value the property. Both the applications came to be dismissed by the executing court. Being aggrieved by the order dismissing the Commissioners application (E.A.No.77/2002), the first respondent/judgment-debtor filed revision before the High Court in C.R.P.No.2829/2002 in which the High Court has granted stay of further proceedings in the execution petition. The Civil Revision Petition came to be dismissed on 9th July, 2003.3. Thereafter, on 30th August, 2003, auction purchaser appellant filed an application under Order XXI Rule 95 C.P.C. for delivery of possession of the immovable property purchased in the court auction sale. In the said application by order dated 12th August, 2005, the executing court ordered delivery of possession which was challenged by the judgment-debtor before the High Court in C.R.P.No.894/2005. By the impugned order dated 2nd January, 2006, the High Court allowed the revision and dismissed the application filed by the appellant under Order XXI Rule 95 CPC on the ground that it is barred by limitation.

Reasoning:
17. Considering the facts of the present case in the light of the above principles, in our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002-an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expressionthe sale becomesand not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained.