BHASKER & ANR. versus AYODHYA JEWELLERS
[2023] 7 S.C.R. 964, Supreme Court of India, 2023
Outcome: Matter referred to larger bench
Segment: Facts
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BHASKER & ANR.
v.
AYODHYA JEWELLERS
(Civil Appeal No. 3844 of 2023)
MAY 10, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Code of Civil Procedure, 1908 – Or. XXI, rr. 92, 94, 95 –
Limitation Act, 1963 – Art. 134 – What is the starting point of
limitation for filing an application under Rule 95 of Order XXI of
the Code of Civil Procedure, 1908 – Held: On a conjoint reading
of sub-rule (1) of r. 92 and r. 94 of Order XXI of CPC, it is apparent
that the order of confirmation of sale under sub-rule (1) of Rule 92
of Order XXI culminates into a grant of a sale certificate under
Rule 94 of Order XXI – The date of sale to be incorporated in the
sale certificate is the date of passing of the order of sale confirmation
– The very fact that Rule 94 of Order XXI incorporates a requirement
of issuing a sale certificate shows that the Legislature was of the
view that mere order of confirmation of auction may not be sufficient
– The certificate is ultimately the evidence of the fact that the auction
in favour of the person to whom a certificate is issued, has been
confirmed by the Executing Court – Prima facie, the only way of
avoiding inconsistency between Rule 95 of Order XXI of CPC and
Article 134 of the Limitation Act is to read into Article 134 that the
starting point for making an application under Rule 95 of Order
XXI of CPC is the date on which a certificate recording confirmation
of auction sale is actually issued to the
purchaser – The decision of
the Co-ordinate Bench in the case of Pattam Khader Khan requires
reconsideration by the larger Bench – In view of the Court, the
larger Bench will have to decide the issue relating to the starting
point of limitation for making an application under Rule 95 of Order
XXI of CPC.
AFCONS Infrastructure Limited and Anr. v. Cherian
Varkey Construction Company Private Limited and Ors.
(2010) 8 SCC 24 : [2010] 8 SCR 1053; Inco Europe
Limited and Ors. v. First Choice Distribution (A Firm)
and Ors. (2000) 2 ALL ER 109; Surjit Singh Kalra v.
[2023] 7 S.C.R. 964
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Union of India and Anr. (1991) 2 SCC 87 : [1991] 1
SCR 364 – relied on.
United Finance Corporation v. M.S.M. Haneefa (dead)
thr. LRs. (2017) 3 SCC 123 : [2017] 1 SCR 583 –
referred to.
Pattam Khader Khan v. Pattam Sardar Khan & Anr.
(1996) 5 SCC 48 : [1996] 3 Suppl. SCR 320 – requires
reconsideration.
Case Law Reference
[2017] 1 SCR 583
referred to
Para 3
[1996] 3 Suppl. SCR 320
requires
Para 4
reconsideration
[2010] 8 SCR 1053
relied on
Para 15
[1991] 1 SCR 364
relied on
Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3844
of 2023.
Arising Out of Special Leave Petition (C) No. 3714 of 2018.
From the Judgment and Order dated 11.04.2017 of the High Court
of Kerala at Ernakulam in CRP No. 181 of 2016.
Sreegesh M. K., Ms. Neha Sharma, Mahesh Agarwal, Advs. for
the Petitioners.
Arun K. Sinha, Sharad Agrawal, Rohan Goel, Rakesh Singh, Advs.
for the Respondent.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
1. Leave granted.
FACTUAL ASPECTS
2. The issue which arises for consideration in this appeal is what
is the starting point of limitation for filing an application under Rule 95 of
Order XXI of the Code of Civil Procedure, 1908 (for short, ‘CPC’).
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3. The property subject matter of this appeal held by the appellants
was sold in execution of a decree passed against the appellants in a
public auction. The respondent is the purchaser of the property. The
order of confirmation of sale in accordance with sub-rule (1) of Rule 92
of Order XXI of CPC was passed on 16th July 2009. The sale certificate
under Rule 94 of Order XXI of CPC was issued by the Executing Court
to the respondent on 5th February 2010. On 27th July 2010, the respondent
filed an application under Rule 95 of Order XXI of CPC before the
Executing Court. The said application was allowed by the Executing
Court. The appellants applied for a review of the said order. The prayer
for review was dismissed by the Executing Court. The appellants
challenged the orders of the Executing Court by filing a Civil Revision
Application before the High Court of Judicature at Kerala. By the
judgment dated 11th April 2017, which is impugned in this appeal, the
High Court dismissed the revision application by holding that the starting
point of limitation for making an application under Rule 95 of Order XXI
was the date on which the sale certificate was issued by the Executing
Court. The High Court relied upon the decision of this Court in the case
of United Finance Corporation v. M.S.M. Haneefa (dead) thr. LRs.1
SUBMISSIONS OF THE PARTIES
4. The learned counsel appearing for the appellants invited our
attention to Article
134 of the Schedule to the Limitation Act, 1963 (for
short, ‘the Limitation Act’). He pointed out that Article 134 is specifically
applicable to an application made under Rule 95 of Order XXI of CPC.
It provides one year for filing such an application from the date the sale
becomes absolute. He submitted that in this case, the sale was confirmed
on 16th July 2009, and the application was moved by the respondent
after more than one year i.e. on 27th July 2010. He relied upon a decision
of this Court in the case of Pattam Khader Khan v. Pattam Sardar
Khan & Anr2. He submitted that this Court has clearly held that the
starting point of limitation for filing an application under Rule 95 of Order
XXI of CPC is the date on which the auction sale is made absolute in
accordance with sub-rule (1) of Rule 92 of Order XXI of CPC. He
submitted that the High Court committed an error by relying upon the
decision in the case of United Finance Corporation1. In the said case,
a revision application against the order rejecting the application for setting
1 (2017) 3 SCC 123
2 (1996) 5 SCC 48
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aside the sale was filed before the High Court in which, further
proceedings were stayed. While computing the limitation, the period of
stay was excluded and that is how this Court held that the application
made in the said case was within limitation.
5. The submission of the learned counsel appearing for the
respondent in support of the impugned order is that the application made
by the respondent will be governed by residuary Article 137 of the
Limitation Act, which provides for a period of limitation of three years.
He would, therefore, submit that in any case, the decision of this Court
in the case of United Finance Corporation1 has been rightly applied by
the High Court.
OUR VIEW
6. We have carefully considered the submissions. It is necessary
to reproduce Rules 92, 94 and 95 of Order XXI of CPC, which read
thus:
“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 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 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
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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.
(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 stage at which the sale was
ordered.”
… … … … … … … …
“94. Certificate to purchaser.- Where a sale of immoveable
property has become absolute, the Court shall grant a certificate
specifying the property sold and the name of the person
who at the time of sale is declared to be the purchaser.
Such certificate shall bear date the day on which the sale
became absolute.
95. Delivery of property in occupancy of judgment -debtor.-
Where the immoveable 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.”
(emphasis added)
7. Article 134 of the Limitation Act, 1963 is also material, which
reads thus:
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8. Article 134 provides that the starting point of limitation for
making an application under Rule 95 of Order XXI is the date on which
the sale is confirmed. Under Rule 92 of Order XXI, the Executing Court
is required to pass an order making an order of confirmation of sale.
Upon passing the said order, the sale becomes absolute. Rule 94 of
Order XXI requires a sale certificate to be issued to the purchaser.
However, the date of the certificate shall be the date on which the sale
became absolute. Rule 95 of Order XXI of CPC, on its plain reading,
incorporates two conditions, which are as under:
i.
The immovable property sold must be in occupancy of the
judgment-debtor or of some person on his behalf or of some
person claiming under title created by the judgment-debtor,
subsequent to the attachment of the property; and
ii. A certificate in respect of the sale has been granted under
Rule 94 of Order XXI of CPC.
Only if both conditions are fulfilled, the Executing Court, on the
application of the purchaser, is empowered to pass an order of delivery
of possession of putting the purchaser in possession of the auctioned
property. Thus, on the one hand, Rule 95 of Order XXI mandates that an
application for possession of the auctioned property can be made by the
auction-purchaser only after a sale certificate in accordance with Rule
94 of Order XXI is issued. But on the other hand, the starting point for
making an application under Rule 95 of Order XXI, in
accordance with
Article 134 of the Limitation Act, is the date on which the sale is made
absolute in accordance with Rule 92 of Order XXI. It is the obligation of
the Executing Court to issue the sale certificate as per Rule 94 of Order
XXI of CPC. In practice, we often notice a substantial delay in issuing
the sale certificate. In this case, the delay is of more than six months. In
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many cases, there is a procedural delay in issuing the sale certificate for
which no fault can be attributed to the auction purchaser.
9. Paragraphs 11 and 12 of the decision of this Court in the case
of Pattam Khader Khan2 read thus:
“11. Order 21 Rule 95 providing for the procedure for delivery of
property in occupation of the judgment-debtor etc., requires an
application being made by the purchaser for delivery of possession
of property in respect of which a certificate has been granted
under Rule 94 of Order 21. There is nothing in Rule 95 to
make it incumbent for the purchaser to file the certificate
along with the application. On the sale becoming absolute,
it is obligatory on the court though, to issue the certificate.
That may, for any reason, get delayed. Whether there be
failure to issue the certificate or delay of action on behalf of
the court or the inaction of the purchaser in completing the
legal requirements and formalities, are factors which have
no bearing on the limitation prescribed for the application
under Article 134. The purchaser cannot seek to extend the
limitation on the ground that the certificate has not been issued. It
is true though that order for delivery of possession cannot
be passed unless sale certificate stands issued. It is manifest
therefore that the issue of a sale certificate is not “sine qua
non” of the application, since both these matters are with
the same court. The starting
point of limitation for the
application being the date when the sale becomes absolute
i.e. the date on which title passed, the evidence of title, in
the form of sale certificate, due from the court, could always
be supplied later to the court to satisfy the requirements of
Order 21 Rule 95. See in this regard Babulal Nathoolal
v. Annapurnabai [AIR 1953 Nag 215 : ILR 1953 Nag 557] ,
which is a pointer. It therefore becomes clear that the title of the
court auction-purchaser becomes complete on the confirmation
of the sale under Order 21 Rule 92, and by virtue of the thrust of
Section 65 CPC, the property vests in the purchaser from the
date of sale; the certificate of sale, by itself, not creating any title
but merely evidence thereof. The sale certificate rather is a formal
acknowledgement of a fact already accomplished, stating as to
what stood sold. Such act of the court is pristinely a ministerial
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one and not judicial. It is in the nature of a formalisation of the
obvious.
12. Such being the state of law on the subject, we fail to see how
the High Court could have come to the conclusion that even though
the sale becomes absolute on confirmation under Order 21 Rule
92 CPC effectively passing title, the same can only be complete
when evidenced by a sale certificate issued under Order 21 Rule
94, and that unless the sale certificate is issued, limitation cannot
start for the purpose of an application under Order 21 Rule 95
CPC, vis-à-vis, Article 134 of the Limitation Act, 1963. The High
Court, in our view erred in holding that it is only from the
date when a sale certificate is issued, that the limitation
starts running. Such view of the High Court would not only
cause violence to the clear provisions of Article 134 of the
Limitation Act but have the effect of unsettling the law already
settled.”
(emphasis added)
10. Paragraph 11 takes the view that there is nothing in Rule 95 of
Order XXI which makes it incumbent for the purchaser to file a sale
certificate along with the application. However, on a plain reading of
Rule 95 of Order XXI, unless a certificate of sale is granted under Rule
94 of Order XXI, the auction-purchaser does not get a right to apply for
delivery of possession by invoking Rule 95 of Order XXI. Therefore, the
view expressed in paragraph 11, prima facie, may not be correct. The
said view is not supported by the plain language of
Rule 95 of Order
XXI of CPC.
11. At this stage, we may note here the decision of this Court in
the case of United Finance Corporation1. In paragraph 11, the Bench
expressed doubt about the correctness of what is held in paragraph 11
of Pattam Khader Khan’s case2. Paragraph 11 of the decision in the
case of United Finance Corporation1 reads thus:
“11. By careful reading of Order 21 Rule 95 CPC, the language
of the provision is indicative that application for delivery of
possession of property purchased in the court auction can be filed
where “a certificate in respect thereof has been granted under
Rule 94 of Order 21”. Having regard to the language of Order 21
Rule 95 CPC “a certificate in respect thereof has been granted in
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Rule 94, the court shall, on the application of the purchaser, order
delivery to be made…” we have our own doubts regarding
the view taken by this Court in Pattam Khader Khan
case [Pattam Khader Khan v. Pattam Sardar Khan, (1996)
5 SCC 48] that “…there is nothing in Rule 95 to make it
incumbent for the purchaser to file the certificate along with
the application” and “… that the issuance of sale certificate
is not a sine qua non of the application …”. However, in
the facts and circumstances of the present case, we are not
inclined to refer the question to a larger Bench — whether
issuance of sale certificate is a sine qua non or not for filing
the application under Order 21 Rule 95CPC and the
question is left open.”
(emphasis added)
However, considering the facts of the case before it, this Court
observed that it was not inclined to refer the question to a larger Bench.
Therefore, a Co-ordinate Bench has already expressed a prima facie
view that what is held in paragraph 11 of Pattam Khader Khan’s case2,
may require reconsideration by a larger Bench.
12. We have already noted the twin conditions which should be
fulfilled as a condition precedent for enabling the Executing Court to
pass an order of delivery of possession in favour of the auction-purchaser.
One of the two conditions is that the auction-purchaser who applies
under Rule 95 of Order XXI of CPC for delivery of possession, must
possess a sale certificate
issued under Rule 94 of Order XXI of CPC.
Once there is a confirmation of an auction sale in accordance with sub-
rule (1) of Rule 92 of Order XXI of CPC, the Executing Court, in the
absence of the prohibitory order of a superior Court, is under an obligation
to issue a sale certificate to the auction-purchaser in accordance with
Rule 94 of Order XXI of CPC. However, the law does not provide for a
specific time limit within which, a certificate under Rule 94 of Order
XXI of CPC should be issued. In a given case, there can be a long
procedural delay in issuing the sale certificate for which the auction
purchaser cannot be blamed. In the present case, the delay is of more
than six months. With greatest respect to the decision of this Court in the
case of Pattam Khader Khan2, prima facie, we are unable to agree
with the view that an application under Rule 95 of Order XXI can be
3 (2010) 8 SCC 24
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made even before the certificate of sale is granted to the auction-
purchaser in accordance with Rule 94 of Order XXI of CPC.
13. Therefore, in our prima facie view, the order of confirmation
of sale under sub-rule (1) of Rule 92 of Order XXI of CPC does not give
a cause of action to the auction-purchaser to apply for possession by
invoking Rule 95 of Order XXI of CPC. He cannot make such an
application unless the Executing Court issues a sale certificate. Though
CPC does not permit an application under Rule 95 of Order XXI to be
filed before the sale certificate is issued, Article 134 of the Limitation
Act proceeds on the footing that cause of action becomes available to
the auction-purchaser to apply for possession on the basis of the order
of confirmation of sale made under sub-rule (1) of Rule 92 of Order
XXI of CPC.
14. Therefore, there is an apparent inconsistency between the
provisions of Rule 95 of Order XXI of CPC and Article 134 of the
Limitation Act. The question is whether the rule of purposive interpretation
can be used to set right the inconsistency or anomaly. We may note here
that even if the delay is on the part of the Executing Court in the issue of
the sale certificate, the delay in filing an application under Rule 95 of
Order XXI cannot be condoned as Section 5 of the Limitation Act is not
applicable to the applications filed under Order XXI.
15. In paragraphs 20 and 21 of the decision of this Court in the
case of AFCONS Infrastructure
Limited and Anr. v. Cherian Varkey
Construction Company Private Limited and Ors.3, the issue of
purposive interpretation has been discussed in detail. The said two
paragraphs read thus:
“20. The principles of statutory interpretation are well settled.
Where the words of the statute are clear and unambiguous, the
provision should be given its plain and normal meaning, without
adding or rejecting any words. Departure from the literal rule, by
making structural changes or substituting words in a clear statutory
provision, under the guise of interpretation will pose a great risk
as the changes may not be what the legislature intended or desired.
Legislative wisdom cannot be replaced by the Judge’s views. As
observed by this Court in a somewhat different context:
“6. … When a procedure is prescribed by the legislature, it is
not for the court to substitute a different one according to its
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notion of justice. When the legislature has spoken, the judges
cannot afford to be wiser.”
(See Shri Mandir Sita Ramji v. Lt. Governor of
Delhi [(1975) 4 SCC 298] , SCC p. 301, para 6.)
21. There is however an exception to this general rule.
Where the words used in the statutory provision are vague
and ambiguous or where the plain and normal meaning of
its words or grammatical construction thereof would lead
to confusion, absurdity, repugnancy with other provisions,
the courts may, instead of adopting the plain and grammatical
construction, use the interpretative tools to set right the
situation, by adding or omitting or substituting the words
in the statute. When faced with an apparently defective provision
in a statute, courts prefer to assume that the draftsman had
committed a mistake rather than concluding that the legislature
has deliberately introduced an absurd or irrational statutory
provision. Departure from the literal rule of plain and straight
reading can however be only in exceptional cases, where the
anomalies make the literal compliance with a provision impossible,
or absurd or so impractical as to defeat the very object of the
provision. We may also mention purposive interpretation to avoid
absurdity and irrationality is more readily and easily employed in
relation to procedural provisions than with reference to substantive
provisions.”
(emphasis added)
16. As a normal rule, while interpreting the
statute, the Court will
not add words or omit words or substitute words. However, there is a
well-recognized exception to this rule which is found in a decision of the
House of Lords in the case of Inco Europe Limited & Ors. v. First
Choice Distribution (A Firm) & Ors.4, wherein the Court held thus:
“The court must be able to correct obvious drafting errors.
In suitable cases, in discharging its interpretative function
the court will add words, or omit words or substitute words.
Some notable instances are given in Professor Sir Rupert Cross’s
admirable opuscule, Statutory Interpretation, 3rd ed.(1995), pp.93-
105. He comments at p.103:
4 (2000) 2 ALL ER 109
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“In omitting or inserting words the judge is not really engaged
in a hypothetical reconstruction of the intentions of the drafter
or the legislature, but is simply making as much sense as he
can of the text of the statutory provision read in its appropriate
context and within the limits of the judicial role.”
This power is confined to plain cases of drafting mistakes. The
courts are ever mindful that their constitutional role in this field is
interpretative. They must abstain from any course which might
have the appearance of judicial legislation. A statute is expressed
in language approved and enacted by the legislature. So, the courts
exercise considerable caution before adding or omitting or
substituting words. Before interpreting a statute in this way
the court must be abundantly sure of three matters: (1) the
intended purpose of the statute or provision in question;
(2) that by inadvertence the draftsman and Parliament failed
to give effect to that purpose in the provision in question;
and (3) the substance of the provision Parliament would
have made, although not necessarily the precise words
Parliament would have used, had the error in the Bill been
noticed. The third of these conditions is of crucial
importance. Otherwise any attempt to determine the meaning of
the enactment would cross the boundary between construction
and legislation.”
(emphasis added)
17. The principle laid down in the said decision was reiterated by
this Court in the case of
Surjit Singh Kalra v. Union of India & Anr5.
In paragraph 19, this Court held thus:
“19. True it is not permissible to read words in a statute which
are not there, but “where the alternative lies between either
supplying by implication words which appear to have been
accidentally omitted, or adopting a construction which deprives
certain existing words of all meaning, it is permissible to supply
the words” (Craies Statute Law, 7th edn., p. 109). Similar are the
observations in Hameedia Hardware Stores v. B. Mohan Lal
Sowcar [(1988) 2 SCC 513, 524-25] where it was observed that
the court construing a provision should not easily read into it words
5 (1991) 2 SCC 87
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which have not been expressly enacted but having regard to the
context in which a provision appears and the object of the statute
in which the said provision is enacted the court should construe it
in a harmonious way to make it meaningful. An attempt must
always be made so to reconcile the relevant provisions as to
advance the remedy intended by the statute. (See: Sirajul Haq
Khan v. Sunni Central Board of Waqf [1959 SCR 1287, 1299 :
AIR 1959 SC 198].)”
18. Coming back to the relevant provisions of Order XXI of CPC,
on a conjoint reading of sub-rule (1) of Rule 92 and Rule 94 of Order
XXI of CPC, it is apparent that the order of confirmation of sale under
sub-rule (1) of Rule 92 of Order XXI culminates into a grant of a sale
certificate under Rule 94 of Order XXI. The date of sale to be
incorporated in the sale certificate is the date of passing of the order of
sale confirmation. The very fact that Rule 94 of Order XXI incorporates
a requirement of issuing a sale certificate shows that the Legislature
was of the view that mere order of confirmation of auction may not be
sufficient. The certificate is ultimately the evidence of the fact that the
auction in favour of the person to whom a certificate is issued, has been
confirmed by the Executing Court.
19. Prima facie, it appears to us that the only way of avoiding
inconsistency between Rule 95 of Order XXI of CPC and Article 134 of
the Limitation Act is to read into
Article 134 that the starting point for
making an application under Rule 95 of Order XXI of CPC is the date
on which a certificate recording confirmation of auction sale is actually
issued to the purchaser. Such interpretation will satisfy the three tests
laid down in the case of Inco Europe Limited & Ors.4 Therefore, in
our considered view, the decision of the Co-ordinate Bench in the case
of Pattam Khader Khan2 and especially, what is held in paragraph 11,
requires reconsideration by the larger Bench. In our considered view,
the larger Bench will have to decide the issue relating to the starting
point of limitation for making an application under Rule 95 of Order XXI
of CPC. We direct the Registrar (J-I) to place this appeal along with a
copy of this order before the Hon’ble Chief Justice of India to enable
him to take appropriate decision on the administrative side.
Ankit Gyan
Matter referred to larger Bench.
(Assisted by : Sarika Thakare and Mahendra Yadav, LCRAs)