Civil Revision Application No. 1086 of 1992

25th February, 1993

Respondent Counsel: V. R. Senwalkar, (for No. 1), .

Cases Cited:
AIR 1987 SC 1443 : (1987) 3 SCC 146 [Para 6]
AIR 1974 All 144 : 1974 All LJ 125, Impliedly Overruled by AIR 1987 SC 1443 [Para 7]
AIR 1968 Pat 70 : 1967 BLJR 566 [Para 6]
AIR 1953 SC 425 : 1950 SCR 806 [Para 7]
AIR 1935 Cal 333 : 158 IC 191 [Para 10]
AIR 1934 PC 134 : 61 IA 248 [Para 10]
AIR 1917 Mad 979 (2) : 31 Mad LJ 222 [Para 6]
(1909) ILR 32 Mad 136 : 91 Mad LJ 224 [Para 10]

JUDGMENT

ORDER :-This revision application raises a question about computation of limitation under Art. 134 of the Limitation Act.

2. In Regular Civil Suit No. 54 of 1981 Gangubai obtained a decree for maintenance against her husband Govindrao. In execution of said decree, agricultural land Block No. 222 admeasuring 69 acres was attached and sold by public auction. Respondent No. 1 - Gopinath purchased this property at the Court auction. The said sale was confirmed on 20-12-1986. An appeal against this confirmation was filed by the judgment debtor on 19-1-1987 and on the very day, the operation of the order of confirmation of sale was stayed by the appellate Court. On 19-4-1991, the said appeal came to be dismissed and the stay granted by the appellate Court was vacated. A Second Appeal arising therefrom was also filed in the High Court and this Second Appeal No. 247 of 1989 was dismissed on 21-8-1991.

3. Auction purchaser Gopinath filed an application for possession of auctioned property under Order XXI Rule 95 on 6-12-1991. This application was objected on various grounds which included the ground of limitation. Learned executing Judge was pleased to allow the application under O. XXI R. 95 and issue warrant of possession vide his Order dated 24-9-1992, which has been challenged in this revision.

4. I heard Shri G. N. Patil, learned Advocate for the petitioner and Shri V. R. Sonwalkar, learned Advocate for the respondent No. 1. Respondent No. 2 served.

5. Two questions arise for consideration. First is regarding the starting point of limitation under Art. 134 and the second is whether exclusion under Section 15(1) of the Limitation Act, 1963 is available in the instant case.

6. I will first deal with the applicability of Section 15(1) of the Limitation Act to the present proceedings. Section 15(1) of the Limitation Act, 1963 reads as under :

15. (1) - In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

It is clear that the exclusion of the period during which injunction or order of the Court had stayed the relief to be sought is available

only in case of a suit or application for execution of a decree. Whether an application under Order XXI, Rule 95 by auction purchaser is an application for the execution of the decree is the question. Formerly, there were divergent views on the point. The High Courts of Madras and Calcutta had held that an application for possession by auction purchaser is not an application to execute the decree. (See 1909 ILR (32) Mad 136 Sultan Sahib Marakayar v. Chidambaram Chettiar, AIR 1917 Mad 979 (2) Maddala Ayudu v. Tanikalla Subbama, AIR 1935 Cal 333, Jateendra Chandra Bandopadhayay v. Rebateemohan Das), whereas a learned single Judge of the High Court of Allahabad in Sahu Deoki Nandan v. Narendra Kumar, AIR 1974 All 144 had taken a view that an application for execution of a decree includes an application by auction purchaser for the delivery of possession. Now, the controversy appears to have been resolved by the judgment of the Supreme Court in Ganpat Singh (dead) by L.Rs. v. Kailash Shankar, AIR 1987 SC 1443. Supreme Court was pleased to hold that an application under Order XXI, Rule 95 cannot be construed to be an application for execution of decree. It observed thus (at p 1447) :

"An application for delivery of possession of immovable property purchased in execution cannot, by any stretch of imagination, be construed as an application for execution of a decree for possession of property so as to invoke the provision of Art. 136, Limitation Act. Merely because the auction-purchaser will be deemed to be a party in the suit in which the decree has been passed, as provided in cl. (a) of Explanation II to S. 47 of the Code, and by virtue of Cl. (b) of Explanation II all questions relating to delivery of possession of the property shall be deemed to be questions relating to execution, discharge or satisfaction of the decree within the meaning of S. 47, an application of delivery of possession under Order XXI, Rule 95, C.P.C. cannot be equated with an application for the execution of a decree for possession so as to apply 12 years period of limitation as prescribed by Art. 136, Limitation Act."

7. The very purpose of providing a separate Article prescribing limitation different from the limitation prescribed for execution of the decree indicates that the legislature was not in favour of treating an application for possession filed by an auction purchaser under Order XXI, Rule 95 to be an application of execution decree. Otherwise these different provisions of Art. 134 and Art. 136 were unnecessary. If the legislature would have considered application of auction purchaser for possession of auctioned property as an application for execution, it would not have prescribed different periods of limitation to them. The judgment of the learned single Judge of Allahabad High Court in Sahu Deoki Nandan v. Narendra Kumar in AIR 1974 All 144 stands overruled by implication in view of the Supreme Court judgment in Ganpat Singh's case (AIR 1987 SC 1443) cited supra. Once it is held that the application of auction-purchaser for possession is not an application for execution of decree, it follows that exclusion of the period of limitation under Section 15 is not available in computing the limitation for such application under Order XXI, Rule 95.

8. Second question to be decided is as to what would be starting point of limitation. It was submitted by Shri G. N. Patil, learned Counsel that the limitation would start running from the date on which the sale was made absolute by order of the Court on 21-1-1987 and if an application is not presented within a period of one year from the said day, it would be beyond the period of limitation as prescribed under Art. 134, whereas Shri V. R. Soinwalkar, learned Counsel for the respondent No. 1, submitted that the sale cannot be said to have been made absolute unless the proceedings challenging the confirmation are finally terminated. Since the Second Appeal was decided on 21-8-1991, limitation would start from that day.

9. Article 134 of the Limitation Act, 1963 is quoted below :

134. For delivery of possession by a purchaser of immovable property at a sale in execution of a decreeOneYearWhen the sale becomes absolute

This article corresponds to Article 180 in the Limitation Act of 1908. Though the period of limitation prescribed is reduced from three years to one year, starting point of limitation is the same. The starting point of

limitation of one year prescribed for the application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree, is the date on which the sale has become absolute. Order XXI, Rule 92 lays down that where no application is made under Rule 89, Rule 90 or Rule 91, for setting aside the sale or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. But when an appeal is filed against the confirmation of sale under Rule 89, Rule 90 or Rule 91, then the sale cannot be taken to have become absolute till final disposal of such an appeal.

10. In Chandra Mani Saha v. Anarjan Bibi, All 1934 PC 134. Privy Council, overruling view taken by Calcutta High Court, was pleased to hold that the words "when the sale become absolute" in Art. 180 of the Limitation Act, 1908 will have to be read along with other relevant provisions of the Code including those which relate to appeals from orders and whereas there is appeal from order of the disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180 until the disposal of the appeal, even thought the Subordinate Judge may have confirmed the sale. This view of the Privy Council was followed in latter judgments like Mani Devi v. Ram Prasad, AIR 1968 Pat 70. Supreme Court in the case of Sri Ranga Nilayam Rama Krishna Rao v. Kandokori Cheillayamma, AIR 1953 SC 425 referring Chandra Mani Saha's case was pleased to observe thus (at p 428) :

"In a simple case, the provisions cited above should settle the controversy, but, in the present case, the matter has been complicated on account of the appeal against order refusing to set aside the sale under O. 21, R. 90. In such a case, generally speaking, the true position seems to be that there is no finality until the litigation is finally determined by the appellate Court."

11. In the instant case, it appears that, on 20-12-1986, sale came to be confirmed and the executing Court was pleased to pass further order making sale absolute on 20-1-1987, but before the said order was passed, appeal was already filed on 19-1-1987 challenging the confirmation of the sale and it was finally disposed on 19-4-1991.

12. A further appeal was taken to the High Court which was dismissed on 21-8-1991. Even if we take the date of dismissal of the Appeal from Order i.e. 19-4-1991 as the final date of the termination of the proceedings, application filed under O. XXI, R. 95 by the auction purchaser on 6-12-1991 is well within limitation of one year as provided by Art. 134. This being the position, though the exclusion under Section 15(1) is not available in such a case, the starting point of limitation itself would be the day on which the appeal filed by the judgment-debtor objector was finally terminated as it would be the real date on which sale has become absolute. Therefore, application by auction purchaser Gopinath will have to be held within limitation and the learned executing Judge was right in holding so and issuing warrant of possession. Revision application is dismissed and rule is discharged. No order a to costs.

Order Accordingly