Kerala High Court
P.P. Muraleedharan vs Remani on 6 July, 2022
OP(C) NO. 1094 OF 2013
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(C) NO. 1094 OF 2013
AGAINST THE ORDER/JUDGMENT IN EP 237/2010 IN OS 50/2002
OF MUNSIFF COURT, NORTH PARAVUR
PETITIONER/S:
P.P. MURALEEDHARAN
AGED 39 YEARS
PADATHINAKATHU HOUSE, KIZHAKKUMPURAM MURI,
CHENNAMANGALAM VILLAGE, REPRESENTED BY POWER OF
ATTORNEY HOLDER, SAJANI MURALEEDHARAN,
W/O.MURALEEDHARAN, PADATHINAKATHU HOUSE,
KIZHAKKUMPURAM MURI, CHENNAMANGALAM VILLAGE.
BY ADV SRI.GEORGE SEBASTIAN
RESPONDENT/S:
1 REMANI
AGED 63 YEARS
W/O.APPU, PERINGADANPARAMBU, PERIOKAPALATH
HOUSE, THOTTAKKATTUKARA, ALUVA.683108
2 K.SUNIL KUMAR
AGED 44 YEARS
S/O.PARAMESWARAN, OORAMBATH VEEDU, PATHARITHARA
PEZHAYANOOR VILLAGE, THALAPPILLY TALUK, TRICHUR
DISTRICT.680609
3 AMMINI
AGED 65 YEARS
W/O.PARAMESWARAN, OORAMBATH VEEDU, PATHARITHARA
PEZHAYANOOR VILLAGE, THALAPPILLY TALUK, TRICHUR
DISTRICT.680609
BY ADVS.
Jino Jose Kallarackal
OP(C) NO. 1094 OF 2013
2
BIMALA BABY(K/687/2004)
BLAISE JOSEPH(K/2023/2019)
MAGI PAVITHRAN(K/1324/2022)
ROSHAN SHAJI(K/001003/2022)
PAUL A.J.(K/000703/2022)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1094 OF 2013
3
JUDGMENT
The original petition is filed challenging the
order dated 29.09.2012 passed by the Court of the
Munsiff N.Paravur in E.P.No.237/2010 in
O.S.No.50/2002.
2. The petitioner's case, in a nutshell, relevant
for the determination of the original petition is that,
he is the auction purchaser, who had purchased the
property of the respondents 2 and 3, which was put
up in sale in the above execution petition filed by the
1st respondent. Ext.P1 is the sale certificate that is
issued in his favour. The respondents 2 and 3 had
filed an application to set aside the sale. The same
was dismissed by the Execution Court by Ext.P2
order. Challenging Ext.P2, the respondents 2 and 3
had filed CMA No.44/2007 before the Court of the
Additional District Judge, N.Paravur. The learned
District Judge had by Ext.P3 order dismissed the
OP(C) NO. 1094 OF 2013
appeal also. Thereafter, the respondents 2 and 3 had
challenged the concurrent orders by filing
C.R.P.No.608/2008 before this Court. The revision
petition was dismissed for non-prosecution. Then the
petitioner had filed Ext.P5 application before the
Execution Court, to effect delivery of the property
covered by Ext.P1 sale certificate to him. The 1 st
respondent - decree holder - objected to Ext.P5 by
filing Ext.P6 objection. The 3 rd respondent also filed
Ext.P7 counter affidavit to Ext.P5 application. The
Execution Court, without appreciating Ext.P5
application in its proper perspective, passed the
impugned Ext.P8 order, rejecting Ext.P5 application.
Ext.P8 is ex facie illegal and unsustainable in law.
Hence, the original petition.
3. Heard; Sri. George Sebastian, the learned
counsel appearing for the petitioner and Smt.Bimala
Baby, the learned counsel appearing for the 1st
OP(C) NO. 1094 OF 2013
respondent.
4. The limitation period for filing an application
for delivery of possession of a property purchased in
an execution proceeding is no longer resintegra in
the light of the categoric declaration of law by the
Full Bench of this Court in Danish Varghese vs.
Jancy Danish [2021 (1) KHC 1 (FB)], wherein, in
paragraph 19 of the judgment, it is declared as
follows:
19. Under Section 134 of the Limitation Act, the
starting point for filing an application for delivery
of possession is when the sale becomes absolute.
Analysis of the above case laws indicates that the
term when sale becomes absolute does not refer
to the sale becoming absolute under Order XXI
Rule 92 CPC. The decisions in Chandra Mani
Saha, Sri Ranga Nilayam and Pattom Khader Khan
affirm that, sale becomes absolute when the title
of property passes to the auction purchaser on
passing of order under Order XXI Rule 95. Above
judicial precedents reiterate that the date when
the sale becomes absolute as referred in Article
134 need not correspond to the date of sale or to
OP(C) NO. 1094 OF 2013
the date of issuance of sale certificate or passing
of the order making the sale absolute under Order
XXI Rule 92. Passing of such an order under Order
XXI Rule 92 is mandatory obligation of the
executing court, if no application is made under
Rules 89,90 and 91 of Order XXI or if such an
application is filed, after it is dismissed. However,
in case of pendency of consequential
proceedings in which Court sale is under
challenge, starting of limitation period under
Article 134 of the Limitation Act may get
extended depending on the pendency of such
proceedings. This is evident from the judgment
of Supreme Court in United Finance Corporation
(supra) wherein it was held that Legislature
consciously adopted the expression "when the sale
becomes absolute" in Article 134 and not when
sale was confirmed. So long as revision filed
against an order passed in the Court of
execution proceedings was pending, it could
not be held that, sale has become absolute, it
was observed. Sale becomes absolute on the
culmination of above proceedings. This is the
starting point of limitation in filing
application under Section 134 of the
Limitation Act, 1973.
5. Thus, a sale becomes absolute only after
culmination of all the proceedings between the
OP(C) NO. 1094 OF 2013
parties to the 'lis' and only, thereafter, the time
period starts to run under Section 134 of the
Limitation Act, 1973.
6. In the case at hand, admittedly Ext.P4
judgment was passed by this Court only on
07.04.2010. The petitioner has filed Ext.P5
application for delivery of possession of the property
covered by Ext.P1 on 25.11.2010, that is well within
the time period of one year. Nonetheless, the Court
below, holding that there is no merger of the decree
of the Trial Court with the decree of the Appellate
Court, has erroneously rejected Ext.P5 application.
7. In the light of the law laid down in Danish
Varghese (supra) and the fact that the petitioner
had filed Ext.P5 application within one year from the
culmination of Ext.P4 proceeding, I hold that Ext.P8
order is erroneous and wrong, and needs to be
interfered by this Court under Article 227 of the
OP(C) NO. 1094 OF 2013
Constitution of India.
In the result, the original petition is allowed as
follows:
1. Ext.P8 order is set aside
2. Ext.P5 application is allowed.
3. The Court below is directed to effect delivery
of possession of the property covered by
Ext.P1 sale certificate to the petitioner in
accordance with law.
4. The time period for making any statutory
payments by the petitioner, shall stand
enlarged by a period of three weeks from the
date of receipt of a certified copy of this
judgment.
Sd/-
C.S.DIAS, JUDGE
rkc/06.07.22
OP(C) NO. 1094 OF 2013
APPENDIX OF OP(C) 1094/2013
PETITIONER'S EXHIBITS
EXHIBIT-P1: A TRUE COPY OF THE SALE CERTIFICATE
29.7.2008 ISSUED IN FAVOUR OF THE PETITIONER FROM THE
MUNSIFF COURT, NORTH PARAVOOR.
EXHIBIT-P2: A TRUE COPY OF THE ORDER DATED 2.4.2007 IN
EA 460/2006 IN EP 100/2004 IN OS 50/2002 OF THE MUNSIFF
COURT, NORTH PARAVOOR.
EXHIBIT-P3: A TRUE COPY OF THE ORDER DATED 29.1.2008 IN
CMA 44/2007 OF THE ADDITIONAL DISTRICT COURT, NORTH
PARAVOOR.
EXHIBIT-P4: A TRUE COPY OF THE ORDER DATED 7.4.2010 CRP
608/2008 OF THIS HON'BLE COURT 7.4.2011.
EXHIBIT-P5: A TRUE COPY OF THE PETITION DATED
25.11.2010 (EP 237/2010 IN OS 50/2002) OF THE MUNSIFF
COURT, NORTH PARAVOOR.
EXHIBIT-P6: A TRUE COPY OF THE OBJECTION DATED 2.6.2011
FILED BY 1ST RESPONDENT HEREIN IN EP 237/2010 IN OS
50/2002 OF THE MUNSIFF COURT, NORTH PARAVOOR.
EXHIBIT-P7: A TRUE COPY OF THE COUNTER AFFIDAVIT DATED
16.7.2011 IN EP 237/2010 IN OS 50/2002 OF THE MUNSIFF
COURT, NORTH PARAVOOR.
EXHIBIT-P8: A TRUE COPY OF THE ORDER DATED 29.9.2012 IN
EP 237/2010 IN OS 50/2002 OF THE MUNSIFF COURT, NORTH
PARAVOOR.
