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Mallika Vs. Ayyappy Karunakaran and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 3211 of 1979-F
Judge
Reported inAIR1981Ker236
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 89, 90, 91, 92(1) and 94; Limitation Act, 1963 - Sections 134
AppellantMallika
RespondentAyyappy Karunakaran and ors.
Appellant Advocate T.K. Kurikesu, Adv.
Respondent Advocate V. Harihara Iyer, Adv.
DispositionRevision allowed
Cases ReferredBishun Prasad v. Central Bank of India
Excerpt:
.....and section 134 of limitation act, 1963 - suit property purchased in court auction - appellant (auction purchaser) filed application for delivery of possession - respondent challenged validity of impugned sale - trial court set aside impugned sale for want of notice of sale - whether auction purchaser entitled to delivery of suit property - when application to set aside sale filed under rules 89 or 90 or 91 of order 21 and decision thereon carried on in appeal there is no finality in regard to same until litigation finally determined by appellate court - any order of confirmation passed before sale became absolute would only be inchoate in nature and no finality could be attached to it - auction purchaser (appellant) entitled to delivery of suit property. - - 149 of 1969 and..........was purchased in court auction on 30-3-1968 by the 1st respondent (the assignee-decree-holder-auction purchaser in e.a, no. 146 of 1969, in e.p. no, 158 of 1964, in o.s. no. 551 of 1958 on the file of the munsiff of ernakalam). after the confirmation of the sale on 9-7-1968 and the issue of the sale sannad the auction purchaser filed e.a. no. 1509 of 1968 for delivery of the sannad property before the munsiff of ernakulam. on receipt of notice of the application respondents 3 to 6 herein, who are judgment-debtors 2, 3, 4 and 6, filed e.a. no. 149 of 1969 challenging the validity of the sale, that petition was allowed, and the sale set aside by the court on 6-2-1970 holding that the sale was ab initio void for want of notice of sale proclamation. the auction purchaser took up the.....
Judgment:
ORDER

K. Bhaskaran, J.

1. The short facts of the case as could be gathered from the statement of facts contained in the memorandum of the civil revision petition are as follows:--The property in question was purchased in court auction on 30-3-1968 by the 1st respondent (the assignee-decree-holder-auction purchaser in E.A, No. 146 of 1969, in E.P. No, 158 of 1964, in O.S. No. 551 of 1958 on the file of the Munsiff of Ernakalam). After the confirmation of the sale on 9-7-1968 and the issue of the sale sannad the auction purchaser filed E.A. No. 1509 of 1968 for delivery of the sannad property before the Munsiff of Ernakulam. On receipt of notice of the application respondents 3 to 6 herein, who are judgment-debtors 2, 3, 4 and 6, filed E.A. No. 149 of 1969 challenging the validity of the sale, That petition was allowed, and the sale set aside by the Court on 6-2-1970 holding that the sale was ab initio void for want of notice of sale proclamation. The auction purchaser took up the matter in appeal in A.S. No. 123 of 1970 before the District Court, Ernakulam, which was later on transferred to the Sub. Court, Ernakulam, where it was renumbered as A.S. No. 294 of 1972. The appellate Court allowed the appeal and confirmed the sale on 18-12-1976. The application for delivery (E.A. No. 1509 of 1968) filed by the auction purchaser before the execution Court was dismissed when E.A. No. 149 of 1969 was allowed on 6-2-1970 stating:

'Since the sale has been declared ab initio void this application is dismissed.'

When, as noticed earlier, the appellate Court subsequently set aside the order of the execution Court setting aside the sale, and confirmed the sale, the auction purchaser on 29-10-1977 filed E.A. No. 998 of 1977 purported to be under Sections 47 and 151 of the Code of Civil Procedure for the revival of E.A. No. 1500 of 1968, the application for delivery which was dismissed on 6-2-1970. The 5th judgment-debtor opposed the application; her main objection to that application was that it was barred by limitation. The court below, however, rejecting the contentions of the 4th judgment-debtor, allowed E.A. No. 998 of 1977 on 4-12-1979. It is, aggrieved by this order passed by the execution Court, that this revision has been preferred by the 5th judgment-debtor.

2. The question that falls for decision is whether the auction purchaser is entitled to delivery of the property on the basis of the application E.A, No. 998 of 1977 for the revival of the delivery application E.A. No. 1509 of 1968 dismissed on 6-2-1970 by the execution Court. It is the contention of the revision petitioner that no application for delivery having been filed within one year from the date of the judgment, namely, 18-2-1976, in A.S. No. 294 of 1972 by which alone the sale was confirmed and made absolute, the auction purchaser had forfeited the right to have delivery of the property by virtue of the provisions contained in Article 134 of the Limitation Act, 1963.

3. The decision on the question of limitation under Article 134 of the Limitation Act would depend upon the date on which the sale became absolute. Order 21, Rule 92 (1) of the Code of Civil Procedure lays down:

'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,' (proviso omitted)

This is not a case where no application under Rule 89, Rule 90 or Rule 91 was made or an application made under any one of those rules was disallowed inasmuch as E.A. No. 149 of 1969 filed by the judgment-debtors under Section 47 and Rule 90 C.P.C. was allowed and the sale was set aside; and with that the confirmation granted and the sannad issued also stood cancelled when the very sale was set aside and the delivery application itself was dismissed,

4. What remains to be considered is the effect of the judgment of the appellate Court which in its penultimate paragraph stated as follows:--

'The order passed by the lower Court setting aside the sale is really erroneous and therefore the said order is set aside and the sale is confirmed.'

The argument of the counsel for the auction purchaser is that when the learned Subordinate Judge said 'the sale is confirmed'', she only meant that the position of the proceedings in the execution court before it passed the order on E.A. No. 149 of 1969 was restored, and in that view the application E.A. No. 1509 of 1968 wrongly dismissed would revive, and therefore the question of limitation under Article 134 could not arise. It is difficult to read into the judgment of the learned Subordinate Judge the idea sought to be introduced by the counsel for the auction purchaser. When the learned Subordinate Judge said 'the sale is confirmed', it does not imply confirmation of a confirmation already granted, but became inoperative on account of the setting aside of the sale, and consequent dismissal of the delivery application itself. The effect of the confirmation ordered prior to the setting aside of the sale does not appear to have entered the mind of the learned Subordinate Judge, as we find only a passing reference to the confirmation ordered by the execution court in her judgment. The only question that received the attention of the learned Subordinate Judge was whether the sale was ab initio void as contended for by the judgment-debtors and as held by the execution court.

5. Under Rule 94 of Order 21 C.P.C.-

'Where a sale of immovable 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,'

The sale certificate contemplated under Rule 94 could be granted only after the sale becomes absolute such certificate has to bear date, the day on which the sale has become absolute. There could, therefore, be only one sale certificate as contemplated under Rule 94 of Order 21, and that is the one to be issued after the sale becomes absolute,

6. When did the sale become absolute in this case? Was it when the sale was confirmed on 9-7-1968, before the passing of the order on E.A. No. 149 of 1969 filed by the judgment-debtors for setting aside the sale and dismissing the application for delivery on 6-2-1970, or was it when the appellate Court allowed the appeal A.S. No. 294 of 1972, set aside the order on E.A. No. 149 of 1969 and confirmed the sale on 18-2-1976? It is the well recognised principle that where an appeal has been preferred against an order on an application under Order 21, Rule 90 C.P.C., generally speaking, there is no finality until the litigation is finally determined by the appellate Court. The head note of the Privy Council case in Chandramani Saha v. Anarjan Bibi (AIR 1934 PC 134), referred to with approval by the Supreme Court in Rama Krishna Rao v. Challayamma (AIR 1953 SC 425), extracted below would suffice if any citation in support of this proposition is needed (at p. 428):--

'Where a Subordinate Judge has disallowed an application under Order 21, Rule 90, to set aside a sale in execution, and has made an order under Rule 92 (1) confirming the sale, and an appeal from disallowance has been dismissed by the High Court, the three years' period provided by the Indian Limitation Act, 1908, Schedule I, Article 180, for an application under O, 21, Rule 95, by the purchaser for delivery of possession runs from the date of the order on appeal, the High Court having under the Code of Civil procedure, 1908, the same powers as the Subordinate Judge, the 'time when the sale becomes absolute', for the purpose of Article 180 is when the High Court disposes of the appeal.'

7. It was held by the Privy Council in Shama Purshad v. Hurro Purshad, (1863-66) 10 Moo Ind App 203) that orders and decrees which were subordinate and dependent upon earlier orders and decrees could remain in force only as long as the order or decree on which they were dependent was not reversed or suspended. When the decrees and judgments on which they depended were reversed, they could not continue to remain in force. On this principle a Division Bench of this Court in State Bank of Travancore v. Mastan Kunju (1980 Ker LT 687) : (AIR 1980 Ker 236), overruling the ruling of a single Bench of this Court in Kunjukrishnan v. Viswanathan (1964 Ker LT 449) : (AIR 1964 Ker 314) held that once the application to set aside the sale was restored, the confirmation made earlier would stand automatically vacated. The Division Bench in the same case, following the decision of the Madras High Court in Varadarajan v. Venkatapathi (AIR 1953 Mad 587), also held that when an application to set aside a sale was restored to file by the decision in appeal and that application was ultimately dismissed, a fresh order of confirmation or sale had to be passed. The Patna High Court in Bishun Prasad v. Central Bank of India (AIR 1980 Pat 22) has held that (at page 24):--

'The suit under Order XXI, Rule 63 is a suit under the Civil P. C. and as such I am of the view that the sale within the meaning of Article 134 of the Limitation Act becomes absolute after the suit under Order XXI, Rule 63, C.P.C, was finally disposed of.'

8. The legal position that emerges from the foregoing discussion is that where an application to set aside a sale is filed under Rule 89 or Rule 90 or Rule 91 of Order 21 C.P.C., and the decision thereon is carried in appeal, generally speaking, there was no finality in regard to the same until the litigation was finally determined by the appellate court. Any order of confirmation passed before the sale became absolute on the termination of the proceedings before the appellate or the revisional authority, would only be inchoate in nature and no finality could be attached to it. The application for delivery of possession of the property in the occupancy of the judgment-debtor, or of some person on his behalf, has to be made in pursuance of the sale certificate issued under Rule 94 of Order 21 when the sale becomes absolute on the termination of the proceedings as aforesaid. In this view the auction purchaser (1st respondent herein) could seek delivery of possession of the property of the judgment-debtors only on the basis of the confirmation of the sale on the allowing of the appeal, A.S. No. 294 of 1972, on 18-2-1976, and if he did not care to file an application for delivery within one year from that date as required under Article 134 of the Limitation Act, 1963, he could not be permitted to get over the plea of limitation by resorting to the filing of an application for revival of the delivery application E.A. No. 1509 of 1968 filed on the basis of the inchoate confirmation granted before the proceedings terminated and the sale became absolute.

The result, therefore, is that the revision is allowed; the order of the court below is set aside; and the auction purchaser's (1st respondent's) application E.A. No. 998 of 1977 in E.P. No. 158 of 1964 in O.S. No. 551 of 1958 on the file of the Munsiff of Ernakulam shall stand dismissed. In the peculiar circumstances of the case I would direct the parties to bear their respective costs.


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