Himachal Pradesh High Court

Between vs Devi on 17 December, 2021

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

ON THE 17th DAY OF DECEMBER, 2021

.
BEFORE

HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL REVISION No.55 of 2020

Between:
SANTOSH KUMAR SOOD,
S/O SH. SUKH RAM,
R/O VILLAGE AND POST OFFICE,
JAISINGHPUR, TEHSIL JAISINGHPUR,

DISTRICT KANGRA, H.P.

....PETITIONER/DECREE HOLDER
(BY MR. AJAY SHARMA, SENIOR

ADVOCATE WITH MR. ATHARV
SHARMA, ADVOCATE)

AND
AMAR NATH SOOD THROUGH HIS LEGAL REPRESENTATIVES:
1. SMT. KUSHLA DEVI,

D/O SH. AMAR NATH SOOD AND
WIFE OF SH. MEHAR CHAND BANTA,
RESIDENT OF LAXMI BAZAR,
JOGINDERNAGAR, P.O.JOGINDERNAGAR,

DISTRICT KANGRA, H.P.
......JUDGMENT DEBTOR

2. ASHOK KUMAR ALIAS HARBANS LAL
SON OF CHAINA MAL SOOD,
RESIDENT OF VPO KHAIRA,

TEHSIL PALAMPUR, DISTRICT KANGRA, H.P.
....OBJECTOR/RESPONDENT
( BY MR. KD.SOOD, SENIOR ADVOCATE
WITH MR. MUKUL SOOD, ADVOCATE FOR
R-2.)
Reserved on" 25.11.2021

Whether approved for reporting? Yes.

This petition coming on for orders this day, the Court passed the following:

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2

ORDER

Instant Civil Revision Petition filed under Section 115 of

CPC, lays challenge to order dated 9.3.2020, passed by learned

District Judge, Kangra at Dharamshala, District Kangra, H.P., whereby

an Execution petition No.66/X/2018, having been filed by the

petitioner-Decree holder (hereinafter referred to as the DH) under

Order XXI Rules 11(2), 95 and 96 CPC, came to be dismissed.

2. For having bird's eye view, certain undisputed facts as

emerge from the record are that a civil suit bearing No.

3-P/1/95/90 for recovery of money having been filed by the Decree

holder, Sh. Santosh Kumar Sood against the person namely, Sh.

Amar Nath Sood came to be decreed for sum of `4,40,162/- alongwith

interest at the rate of 12% per annum w.e.f. June 1987 vide judgment

and decree dated 16.05.1997, passed by learned District Judge,

Kangra, District Kangra, H.P. Decree holder filed an Execution

petition for execution of aforesaid judgment and decree and therein

filed an application for attachment of the property of the judgment

debtor Sh. Amar Nath. In execution proceedings, warrants of

attachment of properties were issued and thereafter properties were

put to sale. Sale of property was opposed by the respondent-

judgment debtor on various grounds, however fact remains that

judgment debtor purchased attached property for partly sum of

`30,000/- and learned executing court allowed the execution petition

as partly satisfied. Decree holder filed petition before this Court

against aforesaid order passed by learned District Judge. This Court

set-aside the sale and ordered for restoration of the execution

petition to its original number. Warrants of sale were issued more

than once and at one point of time, respondent/objector Ashok Kumar

purchased a truck from the judgment debtor and made a statement

to pay sum of `1,50,000/- in lieu of the truck to the Decree holder,

but he failed to adhere to his assurance and filed review application

in execution petition with a prayer to review the order dated

6.6.2006. Review application having been filed by objector-

respondent herein was rejected vide order dated 5.12.2007,

whereafter he being aggrieved, filed petition before this Court, which

again came to be rejected vide order dated 7.8.2007. Since, attached

property was not being sold despite best efforts, Decree holder with

the permission of the Court participated in the sale and purchased

the alleged property for sum of `13,21, 445/-. After purchase of sale

property by Decree holder, sale certificate though was issued in his

favour, but since some of the properties put to auction were not

mentioned therein, he filed an application under Sections 151, 152

and 153 CPC , praying therein for amendment/correction in sale

certificate dated 11.11.2009. Decree holder averred in the

application that sale certificate issued in his favour was not issued in

terms of the Order 21 Rule 68 CPC as the same did not contain the

necessary detail in respect of auction/sale. Respondent No.2/ objector

contested the application claiming therein certain interest in the

property. Learned Executing Court while allowing the application

concluded that sale certificate was required to be issued as per sale

warrants, wherein description of attached property of the judgment

debtor had been mentioned vide para-I to xiii, whereas in the sale

certificate, the shops, residential area as stated in para No.VI, VIII, XI,

XII and XIII had been excluded, therefore, correct certificate be issued

after including this property.

Being aggrieved and dissatisfied with aforesaid order

passed by executing court, respondent/objector filed CMPMO No.16

of 2018 in this Court, which came to be dismissed vide judgment

dated 23.8.2018 (Annexure P-1). While dismissing the petition having

been field by the respondent/objector, this court having taken note of

the fact that Decree holder despite having decree in his favour failed

to enjoy the fruit of success, directed the executing Court to ensure

that properties as mentioned in the correct sale certificate and all

other consequential action, if not already taken, be taken within 15

days from the receipt of the copy of the order. After passing aforesaid

order, parties appeared before the Executing Court on 27.8.2018.

Decree holder filed execution petition No.66/X/2018 on 26.11.2018

under Order 21 Rules 11(2), 95 and 96 CPC, praying therein for

issuance of warrant of possession of land as per certificate of sale

(corrected vide order dated 27.11.2017) and for recovery of rent of

rupees 3,00,000/- per annum at the annual rate of 12%

(Compounding) yearly from the date of public auction i.e. from

24.5.2007 to 23.52018 i.e. for 11 years, which comes out to

`33,00,000/- plus total interest `36,39,939= `69,39,939/-, so

obtained by the judgment debtor/respondent No.2 from the building

occupied by the State Bank of India, Branch Upper Khaira and KCC

Bank branch lower Khaira, purchased by the Decree holder in the

public auction. Averments/facts narrated in the application are

verbatim same as has been taken note hereinabove and as such,

same are not reproduced herein for the sake of brevity.

4. In nutshell, Decree holder claimed in the execution

petition that delivery by way of possession of the properties, as

specifically detailed in the Sale Certificate dated 29.11.2017, be

given, which is reproduced hereinbelow:

i) Land Khata No. 76, Khatauni No. 159, Khasra Nos. 325, 326, 329, 369, 371, kita 5, area 0-02-50 hectares to the extent of 1/5th share working out 0-05-30 hectares in Mohal Kanyalakd,

vide Jamabandi 1995-96;

ii) Land Khata No. 77, Khatauni No. 160, Khasra Kita 31, area 0- 59-22 hectares to the extent of 21/780 hectares, working out to 0-01-59 hectares in Mohal Kanyalakd, vide Jamabandi 1995-

96. It is averred that there is one building rented out to KCC Bank, owned by Amar Nath;

iii) Land Khata No. 78, Khatauni No. 163, Khasra Kita-8, area 0- 02-95 hectares to the extent of 21/3120 hectares, share working out to 0-00-02 hectares situated in Mohal Kanyalakd, vide Jamabandi 1995-96;

iv) Land Khata No. 80, Khatauni No. 166/1 to 172, Khasra Kita 20, area 0-15-05 hectares to the extent of 21/3120 hectares, share working out to 0-00-10 hectares, in Mohal Kanyalakd vide Jamabandi 1995-96;

.

v) Land Khata No. 80/1 Khatauni Nos.173, 174, and 175 Khasra Kita 4, area 0-04-71 hectares to the extent of 21/3120 hectares, share working out to 0- 00-03 hectares, in Mohal

Kanyalakd, vide Jamabandi 1995-96 alongwith a house and a shop situated in the aforesaid land in Mohal Kanyalakad, as per Jamabandi 1995-96;

vi) Land Khata No. 10, Khasra Kita 2, area 0-01- 32 hectares to

the extent of 1/30 hectares, share working out to 0-00-04 hectares, situated in Upperla Khaira, vide jamabandi 1995-96. One residential Kothi Pucca double storey lintel roofed situated in Mohal Kanyalakd;

vii) One shop single storey lintel roofed Pucca situated in the

aforesaid land of Mohal Kanyalkad to the extent of 1/4th shares;

viii) Land Khata No. 10, Khasra Kita 2, area measuring 0-01-32 hectares to the extent of 1/30 hectares, share working out to 0-

00-04 hectares, situated in Upperla Khaira, vide Jamabandi for the year 1995-96;

ix) Land Khata No. 18, Khasra kita 4, area measuring 0-45-88

hectares to the extent of 1/15 hectares, share measuring 0-03- 06 hectares of Mohal Upperla Khaira, vide Jamabandi 1995-96;

x) Land Khata No. 19, Khasra Kita 3, area measuring 0-01-78 hectares to the extent of 1/30 hectares, share measuring 0-00- 06 hectares of Mohal Upperla Khaira vide Jamabandi for the

year 1995-96;

xi) Land Khara No. 20, Khasra Kita 3, area measuring 0-19-14 hectares to the extent of 1/48 hectares, share measuring 0-00- 40 hectares situated in Mohal Upperla Khaira, Mouza Khaira, Teh. Palampur, Distt. Kangra (HP), alongwith shops and houses built by Amar Nath and others. One building rentred out to SBI at Upperla Khaira, Teh. Palampur to the extent of 1/4th share;

xii) seven shops double storey Pacca situated in Upperla Khaira, Teh. Palampur;

xiii) two shops double story slate roofed situated in Upperla Khaira, Teh. Palampur, to the extent of 1/4th share.

.

5. Aforesaid prayer made on behalf of the Decree holder

came to be resisted on behalf of the respondent-objector, who

besides taking preliminary objections with regard to maintainability

and limitation claimed that decree, dated 16.5.1997 stands duly

satisfied by sale of property of judgment debtor. He also claimed that

sale certificate was issued and application of Decree holder for sale

certificate was allowed on 1.12.2008. He further averred that the

applicant/ Decree holder had filed an application under Sections

151,152 and 153 CPC for correction of sale certificate and same was

allowed and corrected on 29.11.2017, thereafter present application

is hopelessly time barred and as such, deserves outright rejection. He

further averred that there is no decree of possession passed by the

Court and as such, possession cannot be delivered. He also claimed

that applicant is not entitled for recovery of rent. Besides above,

respondent/objector averred in the reply that there is a civil suit titled

as Kirna Devi @ Kirna Kumari Vs. Santosh Kumar Sood and others

pending adjudication before ld. Civil Judge, Palampur and therein

certificate of Sale dated 11.11.2009, as corrected on 29.11.2017, has

been challenged. He claimed that present execution petition is a

counter blast to the suit, as detailed hereinabove. He also claimed

before the executing court that suit No.338/09/2016, titled as Harish

Chand @ Ramesh Chand and anr Vs. Ashok Kumar and ors filed before

ld. Sr. Civil Judge, Palampur is/was with respect to the estate of Smt.

Karodhu, in which, the Will dated 20.05.1993 executed by Karodhu

.

Devi, was challenged, and same was decreed and the Decree holder

was defendant No.4, in that suit. He further claimed that since in the

aforesaid case Will has been set aside, the present application has

no concern with this suit property and the sale certificate has become

infructuous.

6. Having taken note of the pleadings adduced on record by

the respective parties, learned executing court below dismissed the

execution petition being wholly misconceived and not maintainable

vide order impugned in the instant proceedings. In the aforesaid

background, Decree holder has approached this Court in the instant

proceedings.

7. Mr. Ajay Sharma, learned Senior Counsel representing the

Decree holder, vehemently argued that order impugned in the instant

proceedings, is totally contrary to the law as well as factual position

available on record and as such, same is not sustainable. He argued

that executing Court had no option, but to deliver the possession of

the properties, as detailed in sale certificate dated 29.11.2017. While

referring to judgment dated 23.8.2018, passed by Co-ordinate Bench

of this Court in CMPMO No.16 of 2018 tilted as Ashok Kumar alias

Harbans Lal versus Santosh Kumar Sood and another, Mr. Sharma,

strenuously argued that respondent/objector has no locus,

whatsoever to oppose the execution petition and as such, court

below has fallen in grave error while entertaining the objections filed

on his behalf. He further argued that findings returned by the court

below that execution petition filed under 21 Rules 11(2), 95 and 96

CPC, praying therein for issuance of warrants of possession of land is

not maintainable, is not sustainable in the eye of law because no

execution petition could have been filed by the Decree holder before

correction of sale certificate, which is in the case at hand was done

on 29.11.2017. He submitted that bare reading of provisions

contained under Order 21 Rule 95 itself suggests that execution

petition can only be filed after issuance of sale certificate and since in

the case at hand corrected sale certificate was issued on 29.11.2017,

execution petition having been filed by the Decree holder cannot be

held to be not maintainable. Lastly, Mr. Sharma contended that once

seven shops double storey pucca situated in Upperla Khaira, Tehsil

Palampur stood mentioned at Sr.No.12 of the sale certificate,

Executing court erred in recording finding that without identifying

shops with reference to any Khasra numbers or in whose possession

these shops are , prayer made on behalf of the Decree holder

cannot be accepted.

8. Mr. K.D.Sood, learned Senior counsel representing the

respondent/objector while making this Court to peruse the revenue

record placed on record by the Decree holder alongwith the petition,

submitted that once respondent/objector has been shown to be one

of the co-sharer in the property, he cannot be said to be stranger and

as such, being one of the co-sharer could always file objection to the

execution petition. Mr. Sood, further argued that executing court

below has rightly held execution petition filed by the Decree holder to

be not maintainable because limitation in filing execution petition

under order 21 Rule 11(2), 95 and 96 CPC would commence from the

date of confirmation of sale and not from the date of issuance of sale

certificate. He further argued that otherwise also execution petition

filed by the Decree holder is/was not maintainable on account of

order dated 8.5.2000, passed by Executing Court in earlier execution

petition filed by the Decree holder, wherein property of the judgment

debtor was ordered to be sold.

9. Having heard learned counsel representing the parties

and perused the material available on record, this Court finds that

there is no dispute interse parties that suit having been filed by the

Decree holder was decreed for the sum of `4,40,162/- with interest

at the rate of 12% per annum from the date of institution till

payment. It is also not in dispute that aforesaid judgment and decree

has attained finality. It is also not in dispute that Decree holder was

permitted to participate in the auction of the property of judgment

debtor and he purchased the property for sum of `13, 21,445/- vide

sale dated 24.5.2007 and such sale was further confirmed by Court

vide order dated 27.6.2007. After confirmation of the sale vide order

dated 27.6.2007, application for issuance of sale certificate was filed

and same was allowed on 1.12.2008. Though, sale certificate was

issued on 1.12.2008, but since there were some clerical errors,

whereby certain properties put to auction, were not mentioned, an

application was filed by the Decree holder for amendment /correction

in the said sale certificate dated 11.11.2009, which was allowed by

the court and fresh sale certificate was issued on 29.11.2017.

Though, aforesaid order was assailed by the respondent/objector, but

petition having been filed by him was dismissed vide order dated

23.8.2018 passed by this Court in CMPMO No.16 of 2018. After

passing of judgment, dated 23.8.2018, Decree holder filed execution

petition under Order 21 Rules 11(2), 95 and 96 CPC for issuance of

warrants of possession of land as per certificate of sale (corrected

vide order dated 27.11.2017) and for recovery of rent of `3, 00,000/-

per annum at the rate of 12%, however such petition of him came to

be rejected being wholly misconceived and not maintainable.

10. Since, specific objections has been raised by the

respondent-objector with regard to limitation coupled with the fact

that execution petition having been filed by the Decree holder has

been held to be not maintainable, this Court deems it fit to deal with

the question of maintainability and limitation at first instance.

11. Before ascertaining the correctness and genuineness of

the submissions and counter submissions having been made by

learned counsel representing the parties vis-à-vis reasoning assigned

in the order impugned in the instant proceedings, it would be

profitable to take note of provisions contained under Order 21 Rule

95 CPC hereinbelow:-

95. Delivery of property in occupancy of judgment debtor.-

Where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule

94, the court shall, on the application of the purchaser, Order delivery to be made by putting such purchaser or any person

whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

12. Mr. Ajay Sharma, learned Senior counsel representing the

Decree holder while referring to aforesaid provisions of law,

vehemently argued that since in the case at hand corrected sale

certificate was issued on 27.11.2017, Decree holder could only file

execution petition after 27.11.2017 and if limitation is counted from

that date, petition having been filed by Decree holder cannot be said

to be barred by limitation.

13. Though, cursory perusal of provisions contained in Rule

95 Order 21 CPC does indicate that where the immovable property

sold is in the possession of the judgment debtor or of some person on

his behalf or a person claiming under a title created by the judgment

debtor subsequently to the attachment of property and a certificate

in respect of such property stands granted under Rule 94, the court

shall, on the application of the purchaser would order delivery by

putting such purchaser or any person whom he may appoint to

receive delivery on his behalf in possession of the property, however,

no time period has been specified in the aforesaid provision to file

application. Since, no time period is prescribed under the afore rule

for filing application, provision of Limitation Act would apply.

14. Article 134 of Limitation Act, provides that an application

for delivery of possession by a purchaser of immovable property at a

sale in execution of a decree is to be made within one year when the

sale becomes absolute. Since Rule 95 CPC does not indicate the time

within which an application is to be made, reference is necessarily

required to be made to schedule to the Limitation Act 1963. Though,

Rule, as taken note hereinabove, suggests that sale certificate would

entitle Decree holder to obtain possession under Rule 95 of Order 21,

but definitely there is nothing in Rule 95 to make it incumbent for the

purchaser to file certificate alongwith his application. Though, after

confirmation of sale, it is compulsory to issue certificate, but the

failure to issue certificate on account of inaction of purchaser or on

account of action of the court has no bearing on the limitation for an

application under Article 134 of Limitation Act. Once sale is confirmed

by the Court, it confers absolute title on the auction purchaser to

seek execution. In catena of cases, it has been held that sale

certificate does not create any title, but it is merely evidence of title,

which can also be proved independently of the sale certificate. Once

sale is confirmed, the sale certificate is formal acknowledgment of a

fact already accomplished stating as to what stood sold. In this

regard reliance is placed upon the judgment rendered by Hon'ble

High Court of Karnataka in Lingarajaiah Vs. H.N. Jambappa, 2014 (3)

KCCR 2009, wherein it has been held as under:-

"9. A perusal of Rule 95 CPC would indicate that where the immovable property is sold, is in occupation of judgment debtor or of some person on his behalf or of some person claiming a title created

by Judgment debtor subsequent to the attachment of such property and certificate in respect thereof has been granted under Rule 94

CPC, the Executing Court on an application of the purchaser can order delivery of possession to be made by putting such purchaser or decree holder if necessary, by removing such person who refuses to vacate the same. Rule 95 CPC as such, does not indicate the time within which such an application is to be made. As such, time prescribed under schedule to the Limitation Act, 1963 would be

applicable namely, Third Division of Part I of Limitation Act, 1963 which relates to the applications specified thereunder. Article 134 of the Limitation Act would indicate that an application for delivery of possession by a purchaser of immovable property at a sale in

execution of a decree has to be made within one year when the sale becomes absolute.

10. A sale becomes absolute when no application is made under Rules 89, 90 or Rule 91 or when such an application is made and disallowed. The title of the auction purchaser becomes complete on confirmation of sale under Order 21 Rule 92 CPC. Sale certificate

would entitle the decree holder to obtain possession under Rule 95 of Order 21. There is nothing in Rule 95 to make it incumbent for the purchaser to file certificate along with his application. On confirmation of sale, it is compulsory to issue certificate. The failure to issue certificate whether delay arises due to the action of the Court or on account of inaction of the purchaser has no bearing on the limitation for an application under Article 134 of Limitation Act. The Decree Holder cannot seek to extend the limitation on the ground that sale certificate had not been issued. Therefore, issue of sale certificate is not sine-qua-non for filing of an application within time prescribed under Article 134. Once sale has been confirmed by the Court, it confers absolute title on the auction purchaser, whether he be the Decree Holder or a stranger. It has been held in catena of judgments that sale certificate does not create any title, but is merely evidence of title. Title can also be proved independently of the sale certificate. The sale certificate is rather a formal

acknowledgment of a fact already accomplished, stating as to what stood sold.

15. Reliance is also placed upon the judgment rendered

by Hon'ble High Court of Karnataka in Abdul Ubedulla Vs. Noorjahn,

(2014)3 KCCR 2056, wherein it has been held as under:-

"7.Before dwelling upon the point for consideration it is essential to understand the scheme provided for sale of an immovable property under the Code of Civil Procedure. Order 21 Rule 82 to Rule 95 deal with sale of immovable property by the Court. Once a property is offered for sale in auction conducted by the Court, the highest bidder in such public auction

would be declared as purchaser and shall pay 25% of the purchase money immediately and the balance is payable in the Court before the Court closes on the 15th day from the date of sale of property. After such sale, Rule 89 provides for an application for setting aside the sale on account of sale consideration being not deposited in the Court. Rule 90 provides for an application for setting aside the sale on the ground of irregularity or fraud.

Where no application is made under Rule 89, 90 or 91 or where such application is made and disallowed under Rule 92, the Court shall make an

order confirming the sale and there upon the sale shall become absolute. Once an order is made confirming the sale, no suit to set aside an order confirming such sale shall be brought by any person against whom such order is made. The remedy provided against an order confirming the sale is to prefer an appeal and separate suit not maintainable. On the to prefer an

the full details confirmation of sale the Court shall grant a certificate specifying the and description of the property sold; the name of the person who at the time of auction sale is declared as be the purchaser and the date on which the sale became absolute. The sale certificate is thus, only an evidence of such sale and not a document of title. The title in an

immovable property sold in the Court sale passes to the auction purchaser, not under the certificate of sale but by an order of confirmation of sale.

8. The title of the Court auction-purchaser becomes complete on the confirmation of the sale under Order 21 Rule 92. By virtue of Section 65 CPC, the property vests in the purchaser from the date of sale. The certificate of sale, by itself do not create any title. It is merely evidence of

title. The sale certificate 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 formalization of the obvious. The title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. The Court was required to make an order confirming the sale, it is upon such confirmation that the sale becomes, absolute in terms of Order 21 Rule 92. Such certificate bears the date as on which the sale became absolute. It is on the sale becoming absolute that the property sold vests in the purchaser. The vesting of the property is thus made to relate back to the date of sale as required under Section 65 CPC.

9, therefore, once the sale is confirmed by an order of the Court, the auction purchaser would be entitled to possession of the property sold at the auction on an application being made by the purchaser under Order 21

Rule 95 CPC for an order delivering the property in his favour by putting him in possession of the same.

10. Article 134 of the Limitation Act prescribes the time limit within which an application under Order 21 Rule 95 CPC is to be filed and it reads

.

as under:





          Article    For delivery of possession by a purchaser of   One year       When   the    sale
                     immovable property at sale in execution of a                  becomes absolute
          134        decree

11. A reading of the aforesaid provision makes it clear that an application under Order 21 Rule 95 for delivery of possession by a purchaser of immovable property on a sale in execution of a decree is to be filed within one year from the date when the sale becomes absolute. In other words, one year period starts running from the date when the Executing Court passes an order under Order 21 Rule 92 CPC confirming the sale. There is

no time gap between an order confirming the sale and the same becoming absolute. Once an order is passed confirming the sale, the sale becomes absolute and within one year from that date, an application under Order 21 Rule 95 has to be filed. Issue of sale certificate under Rule 94 is of consequence. The auction purchaser can seek delivery of possession under

Order 21 Rule 95 CPC even without obtaining a certificate of sale. Even otherwise, when a sale certificate is issued on a subsequent date, it shall

bear the date on which the sale became absolute Therefore, it is not the date of issue of sale certificate but the date on which the sale became absolute which is relevant for calculating the period of limitation under Article 134 of the Limitation Act in respect of an application under Order 21 Rule 95 CPC.

16. In Danish Varghese versus Jancy Danish, (2021) 1 KLJ

755, wherein it has been held as under:-

"7. Before answering the crucial question, it will be useful to refer to certain provisions of CPC which directly bear on the question. Order XXI

Rule 82 to Rule 88 of CPC deals with court sale. Rule 89, Rule 90 and Rule 91 of CPC provide the three specific grounds on which the Court sale can be set aside. Order XXI Rule 92 of CPC deals with the stage when the sale becomes absolute. It provides that, where no application is made under

Rule 89 or Rule 90 or Rule 91 of CPC, or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon sale shall become absolute. Rule 94 deals with the sale certificate issued to the purchaser. It provides that, where 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 was declared to be the purchaser. Such a certificate shall bear the date on which the sale took place. Rule 95 provides that, where the immovable property sold is in occupancy of the judgment debtor or of some other person on his behalf or of some person claiming under a title created by the judgment debtor subsequent to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court, shall, on an application of the purchaser order delivery to be made by such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. Article 134 of the

Limitation Act provides that the time limit for filing an application for delivery of possession is one year reckoned from the date when the sale becomes absolute. Section 65 CPC provides that where Court sale has become absolute, the property shall be deemed to have vested in the purchaser, from the time when property was sold and not from the time

.

when sale becomes absolute.

8. To consider the legal question that has been referred in its correct perspective, the two specific ancillary points are to be analyzed. A. What is the starting point of one year limitation period prescribed under Article 134 of the Limitation Act.

B. Is it mandatory for the auction purchaser to take delivery of the property purchased by him in court auction.

Point No. A: What is starting point for reckoning one year period under Article 134 of the Limitation Act?

9. Whether the limitation period provided under Section 134 of the Limitation Act 1963 (corresponding to Article 180 of the Limitation Act, 1908) would start from the date of sale, date of confirmation of safe, or the date when sale certificate was issued has drawn the attention of the Courts in various decisions. Under Order XXI, Rule 92, after sale, the Court shall

pass an order confirming sale and thereupon sale becomes absolute. Certificate of purchase is issued thereafter. Under section 65 CPC, property

will vest with purchaser when the property is sold and not from the time when sale becomes absolute. However, under Article 134, Limitation period starts when sale becomes absolute. These provisions, prima facie gives an indication that Court sale, vesting of title, sale becoming absolute and issuance of sale certificate are different stages of sale.

10. In Babulal Nathoolal v. Mt. Annapurnabai (AIR 1953 Nag 215), the Division Bench was called upon to consider the question whether the application for delivery of possession under order XXI Rule 95 of CPC without enclosing the sale certificate under Order XXI Rule 94 of CPC was maintainable. It was held that sale certificate was not the title deed and it

merely evidenced the title. It was held that, application for delivery of possession cannot be dismissed as barred by limitation, even if the sale certificate was obtained and filed after the period of limitation under Article

180 of the Limitation Act, 1908 has expired1 It was held that, there was nothing in Order XXI Rule 95 of CPC that made it incumbent on the auction purchaser to file certificate along with his application. It was held that, issuance of sale certificate was not the 'sine quo non' of filing the

application under Order XXI Rule 95 of CPC. The implication was that the starting point of limitation was not the date when sale certificate was issued.

11. In Municipal Corporation Of Delhi v. Pramod Kumar Gupta . ((1991) 1 SCC 633 : AIR 1991 SC 401), it was held that, title passes under the auction sale, by force of law and the transfer becomes final when an order under Rule 92 confirming it is made. By the certificate issued under Rule 94, the court was formally declaring the effect of sale and was not extinguishing or creating title. The object of issuance of such a certificate was to avoid any controversy with respect to the identity of the property sold and of the purchaser thereof and also the date when these all become absolute.

12. In Sagar Mahila Vidyalaya, Sagar v. Pandit Sadashiv Rao Harshe ((1991) 3 SCC 588 : AIR 1991 SC 1825), three Judges Bench of the Supreme Court opined that once an order under Order XXI Rule 92 CPC confirming the sale

was made, the title of the auction purchaser relates back to the date of sale as provided under Section 65 CPC. The title in the property thereafter vests in the auction purchaser and not in the judgment debtor. The issuance of sale certificate under Order XXI Rule 94 CPC in favour of the auction purchaser though mandatory, the granting of certificate was a

ministerial act and not judicial. In the above decision, it was concluded

that, on confirmation of sale under Order XXI Rule 92 CPC, the right, title and interest of the judgment debtor over the property sold, stands completely transferred in favour of the auction purchaser.

13. Privy Council in Chandra Mam Saha v. Anrajan Bibi (1934 SCC

OnLine PC 24) held that the words "when the sale become absolute" in Article 180 of the Limitation Act 1908, will have to be read along with Order XXI Rule 94 CPC and other relevant provisions of the Code, including those which relate to appeals from orders and whereas, there is appeal from order disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 of the Limitation Act

until the disposal of the appeal, even though the execution court might have confirmed the sale, as he was bound to do so, when he decided to disallow the above mentioned application. Hence, the privy council held that the sale become absolute on the date when the appeal filed against the judgment dismissing the application was rejected by the High Court.

14. The above view was followed in subsequent decisions including the decision of Supreme Court in Sri. Ranga Nilayam Rama Krishna Rao v.

Kandokori Cheillayamma (AIR 1953 SC 425). In Sri. Ranga Nilayam Rama Krishna Rao's case, Supreme Court held that the three year period provided under Section 180 of the Indian Limitation Act 1908 for filing an application under Order XXI Rule 95 by the purchaser for delivery of possession has to be reckoned from the date of the order in the appeal, the High Court having, under CPC, the same power as that of the trial court. The words

"when the sale becomes absolute" for the purpose of Article 180 was when the High court disposes of the appeal, if any.

15. In Pattam Khader Khan's case (supra), the issue that came up for

consideration was the date of commencement of limitation period under section 134 of the Limitation Act, for filing an application under Order XXI Rule 95 CPC. It was held that, sale as provided under Article 134 of the

Limitation Act 1973, becomes absolute not on the date of issuance of the sale certificate. It need not always correspond to the date when the sale is made absolute by an order of the execution court under Order XXI Rule 95 also. Supreme Court held that court sale was a compulsory sale conducted

by or under the orders of the court. The title of the property does not stand vested with the purchaser immediately on the sale unlike the case of private sale. The law requires that, it does not become absolute until some time after the sale, and the period of 30 days must expire from the date of sale before the sale can become absolute. In the meanwhile, the sale is susceptible of being set aside on any of the ground provided under Order XXI of Rules 89, 90 and 91 CPC. If no such application is made or such application if filed, is dismissed, the court shall be required to make an order confirming the sale and it is upon such confirmation that the sale become absolute in terms of the order XX1 Rule 92 CPC. After the sale has become absolute, the certificate, as required, to be granted by the court to the purchaser, termed as the certificate of sale as provided under Order XXI Rule 94 CPC is issued. Such certificate bears the date on which the sale became absolute. On the sale becoming absolute, the property sold vests on the purchaser and vesting is thus made to relate back to the date of sale under the provisions of Order XXI CPC, it was held.

16. Proceeding further, the Supreme Court held that there was nothing in Rule 95 CPC to make it incumbent for the purchaser to file certificate along with the application. When the sale become absolute, it is obligatory on the court to issue such certificate. That may, for many reasons get delayed. Whether there is a failure to issue certificate or delay of action on behalf of

the Court or inaction of purchaser in completing formalities are factors

which have no bearing on the limitation prescribed for application under Article 134 of the Limitation Act. The purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It was concluded that the issue of sale certificate was not the sine quo non of the application since both those matters were within the jurisdiction of the

same court. Ultimately, the Supreme Court held that the starting point for limitation under section 134 of the Limitation Act for filing application under Order XXI Rule 95 CPC was the date when the sale becomes absolute viz, the date on which the title passed. The evidence of title in the form of sale certificate issued from the court could always be supplied later to the court to satisfy the requirements under Order XXI Rule 95 CPC. According to the

court, sale certificate was a formal acknowledgment of facts already accomplished stating as to what stood sold. Such act of the court was pristinely a ministerial one and not judicial."

17. Learned counsel representing the Decree holder placed

reliance upon the following judgments passed by Hon'ble Apex Court

in case titled State of Punjab versus S.P.Sharma, (1973) 2 Supreme

Court cases 466, Ghanshyamdas and another versus Om Prakash

and another, 1993 Supp(3) Supreme Court Cases 368 and Janak Raj

versus Gurdial Singh and another, AIR 1967 Supreme Court Cases

608, to claim that sale becomes absolute with the issuance of sale

certificate and without there being any sale certificate, no application

for delivery of possession under Order 21 Rule 11(2) 95 and 96 CPC

could be filed.

18. Having carefully perused the aforesaid judgments

pressed into service by learned Senior Counsel representing the

petitioner-DH, this Court is of the view that same are not of any help

to the case of the petitioner-DH.

19. Precisely, all the above relied upon judgments though

declare that sale certificate in favour of the auction-purchaser was

conclusive of the sale, but it has been nowhere held that application

for warrant of possession of the property purchased in auction can

only be filed after issuance of sale certificate. Once sale is confirmed

by Court, it confers absolute title on the auction-purchaser to seek

execution and as such, he/she immediately after confirmation of sale

is required to file application for warrant of possession under Order

21 Rule 11(2) 95 and 96 CPC

20.

Judgment titled as K.R.Lakshminarayana Rao versus New

Premier Chemical Industries, (2005)9 Supreme Court Cases 354,

relied upon by learned Senior counsel representing the petitioner/DH

itself lays down the law that once a decree stands satisfied, the

execution proceedings come to an end and, in that view of the

matter, proceedings contemplated under Order 21 Rule 25 CPC is

required to be initiated for the purpose of obtaining delivery of

possession of the property purchased in court auction by the decree

holder, but such an application must be filed within the prescribed

period of limitation as provided for under Article 134 of the Limitation

Act, 1963. It would be profitable to reproduce para No.9 of the

aforesaid judgment hereinbelow:-

"9. There cannot be any doubt whatsoever that when the decree is satisfied, the execution case comes to an end. Once a decree is satisfied, the question of invoking the provisions of Article 136 of the Limitation Act, 1963 would not arise, inasmuch as a bare perusal thereof would clearly go to show that the same would be attracted only

when an application is filed for executing the decree. Article 136 of the Limitation Act is, therefore, not attracted when an application is required to be filed in the execution proceedings for a purpose other than for execution of the decree. Once a decree stands satisfied, the execution proceedings come to an end and, in that view of the matter,

.

a proceeding in the nature of one contemplated under Order 21 Rule

95 CPC is required to be initiated for the purpose of obtaining delivery of possession of the property purchased in court auction by the decree- holder. Such an application must be filed within the prescribed period of limitation as provided for under Article 134 of the Limitation Act, 1963. The Schedule appended to the Limitation Act, 1963 having

provided for a specific provision prescribing limitation for filing an appropriate application for recovery of possession of any property in possession of the judgment-debtor, it is idle to contend that Article 136 of the Limitation Act would apply even in relation thereto. The law enunciated by the majority opinion of the Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar has

been approved by this Court in Harnandrai case(1973) 2 SCC 467 in the following terms: (SCC pp. 470-71, para 5)"

21. Since in the case at hand sale was confirmed vide order

dated 27.6.2007, Decree holder ought to have filed execution petition

within a period of one year from the date of issuance of the sale

certificate i.e. on or before 27.6.2008. However, in the case at hand,

execution petition under Order 21 Rule 11(2) 95 and 96 CPC came to

be filed on 26.11.2018 and as such, rightly came to be held not

maintainable by executing Court below. Otherwise also, having

carefully perused the order impugned in the instant proceedings, this

Court finds no illegality in the same because same is based upon

proper appreciation of facts as well as law. It is not in dispute that no

decree for possession ever came to be passed by the Civil Court,

rather Civil Suit No.03/P/1/95/1999 was decreed for sum of

`4,40,162/- in favour of the Decree holder alongwith interest at the

rate of 12% per annum from the date of institution till payment.

22. Apart from above, sale certificate itself suggests that

Decree holder purchased shares in the various khatas and as such,

he cannot claim himself to be absolute owner of the entire Khata,

which was never purchased by him. Jamabandi for the year 2015-16,

clearly depicts that Decree holder possesses certain shares alongwith

other co-sharers in the joint land purchased by him in auction sale.

Decree holder after having purchased share of judgment debtor Amar

Nath only became one of the co-owner alongwith other co-owners

and as such, he cannot claim himself to have become exclusive

owner of the land. Since, he is one of the co-owner in the joint

possession, prayer having been made on his behalf for issuance of

warrants of possession of land as per sale certificate dated

27.11.2017, rightly came to be rejected by the Court. Decree holder

after having obtained permission from the executing Court

participated in sale and purchased the shares of the judgment debtor

in the joint land and as such, he after having purchased the share of

judgment debtor in the joint land became co-owner in joint

possession, but definitely he cannot claim possession of entire joint

land, which is yet to be partitioned in accordance with law.

Judgment/decree sought to be executed stands duly satisfied and as

such, no illegality and infirmity can be said to have been committed

by the court below while dismissing his application. This Court finds

from the record that Decree holder has been shown as one of co-

owner in the joint land in the jamabandi for the year 2015-16 on the

basis of sale certificate issued in his favour and as such, decree

stands duly satisfied. In case, he wants to be declared as exclusive

owner of his share, appropriate remedy for him is to file partition

proceedings in accordance with law and definitely, he cannot be

permitted to use provisions contained under 21 rule 11(2) 95 and 96

to partition the joint land.

23. This Court further finds from the reply filed by the

respondent-JD to the application filed by the DH that land in question

is a part of suit land, which was subject matter of Civil Suit No. 388/

9/ 2016, titled as Harish Chand vs. Ashok Kumar etc, and in that suit

Decree holder stood arrayed as defendant No.4. Though, appeal

against the aforesaid judgment is stated to have been filed, but such

fact never came to be brought on record by the Decree holder while

seeking execution of decree by filing application under Order 21 Rule

11(2),95 and 96 CPC. No doubt, sale certificate talks about seven

shops double story pucca situate at Uppral Khaira, Tehsil Palampur,

but since Decree holder has not purchased specific share in the joint

land, executing court below rightly held that applicant has not given

the correct particulars of the property mentioned at Sr.No.12 of the

list as to in which Khasra number these shops were situated or

whether this was exclusive property of judgment debtor or it was also

part of the joint land. Once Decree holder has become one of the

co-owner and he wants that the opposite party should account for

the rent received from various authorities in respect of rented

premises, appropriate remedy is not to file application under Order

21 Rules 11(2), 95and 96 of CPC, but for that purpose he may have

to file appropriate proceedings in appropriate Court of law.

24. Consequently, in view of the detailed discussion made

hereinabove as well as law taken into consideration, this Court finds

no illegality and infirmity in the impugned order and accordingly

same is upheld.

The present petition is dismissed alongwith pending

applications, if any.

    17th December, 2021                                           (Sandeep Sharma),
          (shankar)                                                   Judge