K. Mohan Ram, J.@mdashThe second respondent in the above Civil Revision Petition filed a suit in O.S.No. 109 of 1997 against the petitioner herein for recovery of money and the suit was decreed. As the decree was not satisfied by the Judgement debtor the petitioner herein the second respondent herein levied execution in E.P.No. 27 of 2004 before the District Munsif Court, Dharapuram. In the Execution Proceedings, the property belonging to the judgment debtor was attached and brought for sale. In the court auction sale held on 28.10.2003, the first respondent was the successful bidder and the sale of the property was confirmed by order dated 21.09.2006. Thereafter, the court auction purchaser, namely, the first respondent herein, filed S.A. No. 17 of 2008 on 06.02.2008 under order 21 Rule 95 of the CPC for delivery of possession of the property purchased by him in the Court auction. The petitioner /judgment debtor contested the application inter-alia contending that the limitation prescribed for the petition for delivery of property purchased in the Court auction sale under Article 134 of the Limitation Act is only one year from the date of confirmation of the court auction sale and when admittedly the application for delivery of possession has been filed beyond the said period of one year, the application is clearly barred by time and hence the same is liable to be dismissed. However, the Court below, though noted the contention of the judgment debtor, rejected the said contention, simply by observing "In the instant case, the sale has been made absolute on 21,09.2005. Hence, no question of delay arises. Hence, the petition is allowed". Being aggrieved by the said order, the judgment debtor has filed the above Civil Revision Petition.
2. Heard the learned counsel on either side.
3. Learned counsel for the petitioner submitted that the facts are not in dispute; admittedly, the court auction sale was confirmed on 21.09.2006 and the petition for delivery under order 21 Rule 95 of the CPC came to be filed on 06.02.2008 and thus the petition was filed beyond the one year period of limitation prescribed u/s 134 of the Limitation Act, but this crucial aspect has been overlooked by the Court below in allowing the petition for delivery though the sale certificate was issued on 22.10.2007 the said fact has no relevance whatsoever for computing the period of limitation prescribed under Article 134 of the Limitation Act. In support of the aforesaid contentions, the learned counsel based reliance on a decision of Apex Court reported in (1996) 5 Supreme Court Cases 48 (Pattam Khader Khan v. Pattam Sardar Khan). In the said decision, in Paragraphs 11 and 12, the Apex Court has laid down as follows :-
11. Order 21 Rule 95 providing for the procedure for delivery of properly 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 the 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 que non" of the application, since both these matters are with he same court. The starting point of limitation for 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 form 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 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 ever 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-�-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 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.
4. Learned counsel for the petitioner also relied on a decision of the Apex Court reported in 2006 (3) CTC 180 (Balakrishnan v. Malaiyandi Konar) (SC) wherein the decision reported in (1996) 5 Supreme Court Cases 48 (referred to Supra) has been referred to and relied upon. In the said decision, in paragraph 14, the Apex Court has laid down as follows:
14. The limitation for the purpose of Article 134 starts from the date of confirmation of sale. See
Learned counsel for the petitioner submitted that on the confirmation of the court auction sale, title vests on the court auction purchaser and the issue of the sale certificate is only an evidence of title to the court auction purchaser; the period of limitation starts running from the date of the confirmation of the sale and not from the date of issue of the sale certificate. Therefore the learned counsel submitted that the order of the court below is liable to be set-aside.
5. Countering the said submissions, the learned counsel for the first respondent fairly submitted that in view of the aforesaid two decisions relied upon by the learned counsel for the petitioner, he is not in a position to defend the order passed by the Court below, but, however, the learned counsel submitted that the right of the first respondent to file a suit for recovery of possession may be protected.
6. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. As laid down in the aforesaid two decisions of the Apex Court, the period of limitation of one year prescribed under Article 134 of the Limitation Act starts running from the date of confirmation of sale and the period of limitation does not start from the date when the sale certificate is issued. The sale becomes absolute on confirmation under order 21 Rule 95 of the Code effectively passing title. It cannot be said to attain finality only when sale certificate is issued under Order 21, Rule 94 of the Code of Civil Procedure. It is unfortunate that the trial court has not properly considered the objections raised by the judgment debtor basing reliance on Article 134 of the Limitation Act. The lower court has not at all adverted to the date of confirmation of the sale and had the Court done that exercise, the erroneous order could not have been passed and therefore the order of the court below is liable to be set-aside and accordingly, the same is set-aside and the Civil Revision Petition stands allowed. However, though the action purchaser had not availed the remedy provided under the code of Civil Procedure, it is always open to him to file a regular suit for possession based on title subject to the period of limitation prescribed there for.
Therefore, it is open to the auction purchaser / first respondent herein to file an appropriate suit if he is so entitled to in law. No costs. Consequently, the connected MP is closed.
