Case Note & Summary
The applicants, original judgment debtors, filed a Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908, challenging an order dated 21 January 2014 passed by the 3rd Joint Civil Judge, Senior Division, Solapur in Civil Misc. Application No.306 of 2007. The trial court had allowed the application filed by the respondent (auction purchaser) under Order XXI Rule 95 CPC, directing the applicants to hand over possession of the suit property. The suit property was originally mortgaged by late Balraj Ramswami Naral to New Bank of India. The bank obtained a decree in Special Civil Suit No.331 of 1990 and filed execution petition (Special Darkhast No.03 of 1992). The property was auctioned and purchased by the respondent on 8 September 1993. The sale was confirmed in favour of the respondent. Thereafter, the respondent filed an application under Order XXI Rule 95 for delivery of possession. The applicants opposed the application, but the trial court allowed it. The High Court, after hearing both sides, held that the trial court had correctly allowed the application as the auction purchaser was entitled to possession after confirmation of sale. The revision was dismissed as devoid of merits.
Headnote
A) Civil Procedure Code - Order XXI Rule 95 - Delivery of Possession to Auction Purchaser - The court held that once a sale is confirmed under Order XXI Rule 92, the auction purchaser is entitled to delivery of possession under Order XXI Rule 95, and the judgment debtor cannot resist such delivery on grounds that could have been raised before confirmation. The revision against such order was dismissed as the trial court correctly allowed the application. (Paras 1-10)
B) Civil Procedure Code - Section 115 - Revision - Maintainability - The court held that a revision under Section 115 lies against an order if it is not appealable and if it suffers from jurisdictional error or material irregularity. In this case, the order under Order XXI Rule 95 was held to be proper and within jurisdiction, hence revision was dismissed. (Paras 1-10)
Issue of Consideration
Whether the Civil Revision Application under Section 115 CPC is maintainable against an order allowing an application under Order XXI Rule 95 CPC for delivery of possession of an auction-purchased property.
Final Decision
The High Court dismissed the Civil Revision Application, upholding the trial court's order directing the applicants to hand over possession of the suit property to the respondent auction purchaser.
Law Points
- Order XXI Rule 95 CPC
- Section 115 CPC
- auction sale
- confirmation of sale
- delivery of possession
- judgment debtor
- auction purchaser
- limitation for execution application
Case Details
2018 LawText (BOM) (09) 51
Civil Revision Application No.1120 of 2014
Mr. Priyal Sarda for the applicants, Mr. Anant Kulkarni for the respondent
Smt. Ambubai Balraj Naral, Shri Manik Balraj Naral, Shri Ravi Balraj Naral, Sou. Mallubai Namdev Bhairi, Sou. Rajmani Shriniwas Battul
Sabale Waghire and Company
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Nature of Litigation
Civil Revision Application against order allowing application under Order XXI Rule 95 CPC for delivery of possession of auction-purchased property.
Remedy Sought
The applicants (original judgment debtors) sought to set aside the order dated 21 January 2014 passed by the trial court allowing the respondent's application for possession.
Filing Reason
The applicants were aggrieved by the trial court's order directing them to hand over possession of the suit property to the auction purchaser.
Previous Decisions
The trial court allowed the application under Order XXI Rule 95 CPC on 21 January 2014.
Issues
Whether the trial court was correct in allowing the application under Order XXI Rule 95 CPC for delivery of possession to the auction purchaser.
Whether the revision under Section 115 CPC is maintainable against such order.
Submissions/Arguments
The applicants argued that the trial court erred in allowing the application as the auction sale was not valid.
The respondent argued that the sale was confirmed and the auction purchaser was entitled to possession under Order XXI Rule 95.
Ratio Decidendi
Once a sale is confirmed under Order XXI Rule 92 CPC, the auction purchaser is entitled to delivery of possession under Order XXI Rule 95, and the judgment debtor cannot resist such delivery on grounds that could have been raised before confirmation. The trial court's order was within jurisdiction and no interference was warranted under Section 115 CPC.
Judgment Excerpts
By this civil revision application filed under Section 115 of the Code Procedure Code, 1908, the applicants have impugned the order dated 21st January 2014 passed by the learned 3rd Joint Civil Judge, Senior Division, Solapur in Civil Misc. Application No.306 of 2007 below Exhibit-1 thereby allowing the application filed by the respondent under Order XXI Rule 95 of the Code of Civil Procedure, 1908.
Procedural History
New Bank of India filed Special Civil Suit No.331 of 1990 against the applicants and obtained a decree on 30 July 1991. The bank filed execution petition (Special Darkhast No.03 of 1992) and attached the property. The property was auctioned and purchased by the respondent on 8 September 1993. The sale was confirmed. The respondent filed Civil Misc. Application No.306 of 2007 under Order XXI Rule 95 CPC for delivery of possession. The trial court allowed the application on 21 January 2014. The applicants filed Civil Revision Application No.1120 of 2014 in the High Court, which was dismissed on 12 September 2018.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order XXI Rule 95
