Case Note & Summary
The petitioner, Abdul Ubedulla, was the auction purchaser in a court sale conducted in execution of a decree in O.S. No. 123/1999 on the file of the Principal Civil Judge (Junior Division), Madhugiri. The suit was filed by respondent Nos. 1 to 5 against the 6th respondent for maintenance and creation of charge over two items of property. The suit was decreed on 06.11.2003 granting monthly maintenance. In execution, the property was sold by court auction on 10.12.2007, and the sale was confirmed on 10.03.2008. The sale certificate was issued on 10.03.2008. The petitioner filed an application under Order 21 Rule 95 CPC on 09.03.2009 seeking delivery of possession of the property. The executing court rejected the application as barred by limitation, holding that the limitation period of one year under Article 134 of the Limitation Act, 1963 commenced from the date of the sale certificate (10.03.2008) and the application filed on 09.03.2009 was within time, but the court erroneously computed limitation from the date of sale (10.12.2007) and held it barred. The petitioner challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution of India. The High Court examined the relevant provisions of the Code of Civil Procedure, 1908 (CPC) and the Limitation Act, 1963. The court noted that under Order 21 Rule 92 CPC, the sale becomes absolute on confirmation, and under Order 21 Rule 95 CPC, the auction purchaser may apply for delivery of possession within one year from the date when the sale becomes absolute. Article 134 of the Limitation Act, 1963 also prescribes a one-year period from the date when the sale becomes absolute. The court held that the sale becomes absolute on the date of confirmation, not on the date of issuance of the sale certificate. The sale certificate is merely a document evidencing the sale and does not affect the commencement of limitation. In this case, the sale was confirmed on 10.03.2008, and the application was filed on 09.03.2009, which was within one year. Therefore, the application was not barred by limitation. The High Court allowed the writ petition, set aside the order of the executing court, and directed the executing court to restore the application and dispose it of in accordance with law.
Headnote
A) Civil Procedure Code - Order 21 Rule 95 - Limitation - Delivery of Possession - The period of limitation for an application under Order 21 Rule 95 CPC for delivery of possession by an auction purchaser is one year from the date when the sale becomes absolute, i.e., the date of confirmation of sale under Order 21 Rule 92 CPC, and not from the date of issuance of the sale certificate. The court held that the sale certificate is merely a document evidencing the sale and does not determine the starting point of limitation. (Paras 1-10) B) Limitation Act, 1963 - Article 134 - Application for Delivery of Possession by Auction Purchaser - Article 134 of the Limitation Act, 1963 prescribes a period of one year for an application for delivery of possession by an auction purchaser, and the time begins to run when the sale becomes absolute. The court clarified that the sale becomes absolute on the date of confirmation under Order 21 Rule 92 CPC, and the limitation period must be computed from that date. (Paras 5-10) C) Civil Procedure Code - Order 21 Rule 92 - Confirmation of Sale - The confirmation of sale under Order 21 Rule 92 CPC is the event that makes the sale absolute, and it is from this date that the limitation for filing an application for delivery of possession under Order 21 Rule 95 CPC begins. The court emphasized that the sale certificate issued under Order 21 Rule 94 CPC is only a formal document and does not affect the commencement of limitation. (Paras 5-10)
Issue of Consideration
Whether the application for delivery of possession under Order 21 Rule 95 CPC is barred by limitation when filed within one year from the date of confirmation of sale but beyond one year from the date of sale certificate?
Final Decision
The High Court allowed the writ petition, set aside the order of the executing court dated 30.04.2011 in Misc. Petition No. 7/2009, and directed the executing court to restore the application and dispose it of in accordance with law, holding that the application was within limitation.
Law Points
- Limitation for delivery of possession under Order 21 Rule 95 CPC starts from date of confirmation of sale
- not from date of sale certificate
- Article 134 of Limitation Act
- 1963
