Kerala High Court
Joseph@Thampikunju vs Retnamma(Died) on 28 February, 2025
RSA No.661/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
RSA NO. 661 OF 2024
AGAINST THE JUDGMENT&DECREE DATED 24.09.2024 IN AS NO.5 OF 2022 OF
ADDITIONAL DISTRICT COURT II, ALAPPUZHA ARISING OUT OF THE JUDGMENT&DECREE
DATED 30.07.2018 IN OS NO.537 OF 2015 OF PRINCIPAL MUNSIFF, ALAPPUZHA
APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2:
1 JOSEPH@THAMPIKUNJU
AGED 73 YEARS
S/O KURIAN ,ARIKODIYIL HOUSE, PULINCUNNU MURI, PULIKUNNU
VILLAGE, ALAPPUZHA ., PIN - 688508
2 SALIMMA JOSEPH
AGED 69 YEARS
W/O THAMPIKUNJU, ARIKODIYIL HOUSE, PULINCUNNU
MURI,PULINCUNNU VILLAGE,ALAPPUZHA., PIN - 688508
BY ADV ROY CHACKO
RESPONDENTS/RESPONDENTS/PLAINTIFF/3RD DEFENDANT AND LR'S OF PLAINTIFF:
1 RETNAMMA(DIED)
AGED 69 YEARS
D/O KUNJIPENNAMMA, VELLATHUMKAVU, KANNADI PADINJARE
MURI,PULINCUNNU VILLAGE,ALAPPUZHA., PIN - 688508
2 THOMAS XEVIER
AGED 67 YEARS
MANNANKARATHARA,PULINCUNNU,KANNADI,ALAPPUZHA., PIN - 688508
3 PRAMOD KUMAR
AGED 50 YEARS
RSA No.661/2024
2
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S/O RETHNAMMA, VELLATHUMKAVU, KANNADI PADINJARE
MURI,PULINCUNNU VILLAGE,ALAPPUZHA., PIN - 688508
4 PRASEEDA DEVI
AGED 52 YEARS
VELLATHUMKAVU, KANNADI PADINJARE MURI,PULINCUNNU
VILLAGE,ALAPPUZHA., PIN - 688508
5 RENJITHA DEVI
AGED 48 YEARS
VELLATHUMKAVU, KANNADI PADINJARE MURI,PULINCUNNU
VILLAGE,ALAPPUZHA., PIN - 688508
BY ADVS.
K.S.HARIHARAPUTHRAN
PINKU MARIAM JOSE
K.M.FATHIMA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.661/2024
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JUDGMENT
1. The question involved in this Regular Second Appeal is whether
an auction purchaser who failed to take delivery of the property
within one year as provided under Article 134 of the Limitation
Act,1963 is entitled to file a suit for recovery of possession on
strength of his title as per Sale Certificate issued by the
Execution Court.
2. It is a settled law that a Second Appeal under Section 100 of the
Code of Civil Procedure shall not be admitted when the
Substantial Question of Law raised therein is a settled question
of law. The very same question which is involved in this Regular
Second Appeal was considered by the Full Bench of this Court
in Danish Varghese v. Jancy Danish [2021 (1) KHC 1]. Even
though the very same question was considered and answered
by the Full Bench of the Court, both sides rely on the findings of
the Full Bench in support of their contention. The contention of
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the appellants/contesting defendants is that the Full Bench has
laid down the law that a fresh suit for recovery of possession at
the instance of an auction purchaser who failed to obtain
delivery within the limitation period under Article 134 of the
Limitation Act is barred under Section 47 CPC. On the other
hand, the contention of the contesting respondents/legal heirs
of the plaintiff is that a fresh suit for recovery of possession
under Article 65 of the Limitation Act is not barred under Section
47 even if the auction purchaser failed to take delivery within
one year as provided under Article 134.
3. The question was referred to the Full Bench by the Division
Bench of this Court in view of the apparently conflicting views
rendered in different decisions of the Hon'ble Supreme Court
and this Court. The Full Bench of this Court considered relevant
decisions on the point and answered the reference. Both sides
cited the decisions considered by the Full Bench to substantiate
their interpretation of the Full Bench. Since the Full Bench has
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considered the relevant decisions and answered the reference
declaring the law on the point, the task of this Court is to
ascertain what exactly is the dictum laid down by the Full Bench.
4. When this Regular Second Appeal came up for admission, the
contesting respondents appeared through counsel, and both
sides advanced arguments in the Appeal. Since this Court was
of the view that the matter requires detailed consideration, this
Court admitted this Regular Second Appeal on the following
Substantial Questions of Law Nos. 1 and 3 formulated in the
Second Appeal.
1. Whether on the facts and circumstances of the case, the Trial
Court and the First Appellate Court were in error in holding that
a Suit for recovery of possession based on title is maintainable
at the instance of the Decree holder/ Auction Purchaser after
expiry of the period of limitation for getting delivery of property
as provided under Article 134 of the Limitation Act, was legally
maintainable?
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2. Whether on the facts and circumstances of the case the First
Appellate Court was justified in applying the ratio of the Full
Bench in 2021 (1) KHC 1 to hold that the suit was maintainable
under Article 65 of the Limitation Act?
5. Since both the counsels advanced substantial arguments at the
stage of admission, even though the appeal is of the year 2024,
I decided to consider the question involved in this Regular
Second Appeal since the very same question frequently arises
for consideration in several other similar Appeals.
6. The 1st respondent/plaintiff in this appeal is shown as died and
the respondents 3 to 5 are the legal heirs of the 1st respondent.
Advocate. Sri. K.S.Hariharaputhran entered appearance for the
respondents 3 to 5. Since the 2nd respondent who was the 3rd
defendant remained exparte before the Trial Court and the
dispute is between the appellant and the respondents 3 to 5,
notice to the 2nd respondent is dispensed with in this appeal.
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7. The parties do not have any quarrel with respect to the essential
facts which are necessary for the disposal of this Appeal: The
plaintiff had filed O.S.No.498/1994 before the Sub Court,
Alappuzha, against the first defendant in the present suit for the
specific performance of an Agreement for sale with an alternate
prayer for recovery of the advance amount. O.S.No.498/1994
was decreed, allowing recovery of advance amount with interest
as per judgment and decree dated 31.10.2000. In execution of
the decree passed in O.S.No.498/1994, the plaintiff purchased
the plaint schedule property having an extent of 2.25 Acres of
paddy land comprised in Sy. No.260/3A, 260/3B of Pulincunnu
Village belonged to the first defendant on 09.03.2004. The sale
was confirmed on 29.07.2006. The Execution Court issued
Ext.A1 Sale Certificate dated 13.08.2012 in favour of the
plaintiff. Plaintiff did not take delivery of the plaint schedule
property in execution of the decree in O.S.No.498/1994. The
present suit is filed for recovery of possession on the strength
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of the plaintiff's title as per Ext.A1 Sale Certificate and
consequential injunction alleging that the defendants 1 and 2
who are the husband and wife are taking hasty preparation to
transfer the plaint schedule property in favour of the third
defendant by creating certain documents; that they have no
right or authority to do so and that being the owner and title
holder of the plaint schedule property the plaintiff is entitled to
recovery the plaint schedule property from the defendants 1 and
2. The third defendant remained ex parte. Defendants 1 and 2
opposed the suit prayers by filing joint Written Statement
contending, inter alia, that the suit is barred by limitation under
Article 134 of the Limitation Act and that a fresh suit is barred
under Order 21 Rule 95 of the Code of Civil Procedure.
8. Both sides did not adduce any oral evidence. The Sale
Certificate in favour of the plaintiff was marked as Ext.A1.
9. The Trial Court decreed the suit allowing recovery of possession
of the plaint schedule property from defendants 1 and 2 and
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granting consequential injunction. Though defendants 1 and 2
filed A.S.No.5/2022 before the First Appellate Court, the same
was dismissed, confirming the judgment and decree passed by
the Trial Court. Both the Courts concurrently found that the suit
for recovery of possession on the strength of the plaintiff's title
is maintainable even if the plaintiff did not take delivery of the
plaint schedule property in the execution proceedings in the
earlier suit O.S.No.498/1994.
10. During the pendency of A.S. No. 5/2022 before the First
Appellate Court, the plaintiff died, and hence, respondents 3 to
5 were impleaded as additional respondents therein.
11. I heard Sri. Roy Chacko, the learned counsel for the appellant
and Sri.K.S.Hariharaputhran, the learned counsel for the
contesting respondents.
12. In support of his argument that the dictum laid down by the Full
Bench in Danish Varghese (supra) is that fresh suit for
possession by the auction purchaser is barred under Section 47
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CPC, the learned counsel for the appellant cited the decisions
of the Hon'ble Supreme Court in Harnandrai Badridas v.
Debidutt Bhagwati Prasad and Others [AIR 1973 SC 2423]
& K.R. Lakshminarayana Rao v. New Premier Chemical
Industries [2005 (9) SCC 354] and the Division Bench decision
of this Court Velikkal Anjaneyan and Another v. Kanjiroli
Abdul Razak and Others [2008(1)KHC 99].
13. In support of his argument that the dictum laid down by the Full
Bench in Danish Varghese (supra) is that fresh suit for
possession by the auction purchaser is not barred under
Section 47 CPC, the learned counsel for the contesting
respondents cited the decisions of the Hon'ble Supreme Court
in Pattam Khader Khan v. Pattam Sardar Khan and Others
[1996 (5) SCC 48] & Balakrishnan v. Malaiyandi Konar
[2006(3) SCC 49] and the Single Bench decision of this Court
in N.G Aravindakshan Nair and Another v. Binoy Kurian
[2017 (3) KLJ 184].
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14. Both the Counsel submitted that the decision of the Hon'ble
Supreme Court in Pattam Khader Khan (supra) is referred by
the Hon'ble Supreme Court to a larger Bench to decide the issue
relating to the starting point of limitation for making an
Application under Order 21 Rule 95 CPC, as per the decision of
the Hon'ble Supreme Court in Bhasker and Another v.
Ayodhya Jewellers [2023 (9) SCC 281]. The said issue does
not arise in this appeal, and hence, I am not considering the
decision Bhasker (supra) in this appeal.
15. The Full Bench of this Court in Danish Varghese (supra)
answered the reference after considering all the decisions cited
by both sides before me. On going through the Full Bench
decision, I also feel there is a little bit of confusion in
understating the correct ratio laid down by the Full Bench.
16. I think it is better to examine the relevant statutory provisions
and the case laws considered by the Full Bench before
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analysing the decision of the Full Bench for a correct
understanding of the law laid down by it.
17. Section 12 CPC deals with bar to further suit. Section 12
provides that where a plaintiff is precluded by rules from
instituting a further suit in respect of any particular cause of
action, he shall not be entitled to institute a suit in favour of such
cause of action in any court to which the code applies.
18. Section 47(1) of the CPC provides that all questions arising
between the parties to the suit in which the decree was passed
or their representatives and relating to the execution, discharge,
or satisfaction of the decree shall be determined by the Court
executing the decree and not by a separate suit. Even though
Section 47 was amended as per Amendment Act 104/1976
which came into force from 01.02.1977, no change was made
in Sub-section (1) of Section 47. As per the Amendment Act,
Sub-section (2) of Section 47 was omitted, and a new
Explanation was added as 'Explanation II', numbering the
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original Explanation as 'Explanation I.' Explanation II provides
that for the purpose of the said Section, a purchaser of a
property at a sale in execution of a decree shall be deemed to
a party to the suit in which the decree is passed and that all
questions relating to the delivery of the possession of such
property to such purchaser or his representatives shall be
deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of the Section.
Only after the inclusion of Explanation II, Section 47 is made
applicable to auction purchaser. There could not be a quarrel
that before the CPC Amendment Act 1976, it was permissible
for the auction purchaser to file a suit and the said suit would
not be hit by Section 47(1).
19. The court sale made in execution of the decree is made
absolute by confirming the sale under Order 21 Rule 92 CPC.
The Court grants Sale Certificate to the purchaser under Order
21 Rule 94 CPC where a sale has become absolute. The
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auction purchaser who is granted Sale Certificate has to obtain
delivery under Order 21 Rule 95 CPC.
20. Article 134 of the Limitation Act,1963 provides that the limitation
period for an Application for delivery of possession by a
purchaser of immovable property at sale in execution of a
decree is one year from the time when the sale becomes
absolute.
21. Section 65 CPC deals with the purchaser's title. It provides that
where the immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be
deemed to have vested to the purchaser when the time when
the property is sold and not from the time when the sale
becomes absolute.
22. Article 65 of the Limitation Act provides for the limitation period
of a suit for possession of immovable property based on title. It
provides that the limitation period is 12 years starting from the
time when the possession of the defendant becomes adverse
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to the plaintiff. In Clause (c) to Explanation to Article 65, it is
provided that for the purpose of the said article where the suit is
by a purchaser at a sale in execution of a decree when the
judgment debtor was out of possession at the date of the sale,
the purchaser shall be deemed to be a representatives of the
judgment debtor who was out of possession. The said Clause
(c) would indicate that a suit by an auction purchaser in a court
sale, where judgment debtor was out of possession, will be
governed by Article 65.
23. Rule 347 of the Civil Rules of Practice, Kerala, provides for
delivery to the purchaser or decree holder. It provides that
where under a decree or in pursuance of a sale certificate, any
person is entitled to be put in possession of any property, he
may apply for the same, and on the payment of the requisite
process fee the court shall order issue of a warrant for delivery
of such property unless it thinks fit to issue notice to any person
interested in opposing the same.
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24. Let me move on to the case laws considered by the Full Bench.
25. Harnandrai(supra) is a Three Judges Bench decision of the
Hon'ble Supreme Court rendered before the CPC Amendment
Act 1976. It is useful to extract Para 6 to 8 in the said decision.
"6. S.47 in our view should be construed liberally. As far back in
1892 (1892) 19 Ind App 166 (PC), the Privy Council spoke
strongly in favour of putting a liberal construction on S.244 of the
Code of Civil Procedure of 1882, which corresponded to present
S.47 of the Code of 1908. The Privy Council reiterated this in
Ganapathy v. Krishnamachariar, 45 Ind App 54 : (AIR 1917 PC
121). If a liberal construction be put upon S.47 it is difficult to
understand why a decree holder who has been a party to the
decree will shed his character as such party merely upon
purchasing the property at the execution sale. After all, a decree
holder purchases the property in execution of his decree with the
permission of the Court. There is no reason why he should not
retain his character of a party to the suit until the delivery of
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possession to him of the property purchased by him. Having
regard to this consideration, if any question is raised by the
judgment debtor at the time of delivery of possession concerning
the nature of the rights purchased and if the judgment debtor
offers any resistance to delivery of possession the question must
be one which in our view relates to the execution, discharge and
satisfaction of the decree and arises between the parties to the
suit.
7. Speaking of the two conflicting views on this section the
learned commentator of the 13th Edition of Sir Dinshaw Mulla's
Code of Civil Procedure makes the following observation:
"The cases in which it has been held that an auction purchaser
even if he is the decree holder is not a party to the suit, require
reconsideration in view of the ruling of the Judicial Committee
that such an auction purchaser is a party to the suit."
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The decision of the Judicial Committee which the learned
commentator had in mind is that of Ganapathy v.
Krishnamachariar, 45 Ind App 54 : (AIR 1917 PC 121).
8. It is important to remember that after the decision of the Privy
Council in Ganapathy's case, 45 Ind App 54 : (AIR 1917 PC 121)
there has been an amendment of S.47 as a result of which the
purchaser at a sale in execution of a decree, whether he is the
decree holder or not, is unquestionably a party to the suit for the
purpose of S.47. Having regard to this, all questions arising
between the auction purchaser and the judgment debtor must in
our view be determined by the executing Court and not by a
separate suit.
26. The Hon'ble Supreme Court has categorically held that all
questions arising between the auction purchaser and the
judgment debtor must be determined by the Executing Court not
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by a separate suit. Though not material for the present case,
even before the inclusion of Explanation II as per CPC
Amendment of 1976, the Hon'ble Supreme Court laid down the
law that questions between the auction purchaser and the
judgment debtor will also come under Section 47.
27. In the decision of the Hon'ble Supreme Court in Pattam Khader
Khan (supra), the Hon'ble Supreme Court was mainly
considering which is the starting point of limitation for the
limitation period under Article 134. The Hon'ble Supreme Court
held that starting point of limitation for the application for delivery
is the date when the sale becomes absolute and that sale
become absolutes on the confirmation of the sale under Order
21 Rule 92 CPC. Thereafter, the Hon'ble Supreme Court held
that on the failure to avail the quicker remedy under Article 134,
the law relegates the auction purchaser to the remedy of a suit
for possession in a regular way. It is useful to extract Para 13 of
the said decision.
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"13.There can be a variety of factors conceivable by which delay can
be caused in issuing the sale certificate. The period of one-year
limitation, now prescribed under Art.134 of the Limitation Act, 1973,
in substitution of a three-year period prescribed under Art.180 of the
Indian Limitation Act of 1908, is reflective of the legislative policy of
finalising proceedings in execution as quickly as possible by providing
a quick forum to the auction purchaser to ask delivery of possession
of the property purchased within that period from the date of the sale
becoming absolute, rather than from the date of issuance of the sale
certificate. On his failure to avail of such quick remedy the law
relegates him to the remedy of a suit for possession in a regular way."
28. The dictum in the said decision is that the remedy under Order
21 Rule 95 CPC is a quicker remedy for the auction purchaser
and on his failure to avail such remedy a suit for possession is
maintainable. In other words, twin remedies are available to the
auction purchaser.
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29. In Laksmi Narayana Rao(supra), the Hon'ble Supreme Court
considered the decision in Harnandrai Badridas(supra) and
did not consider the decision in Pattam Khader Khan (supra).
The said case arose from a suit for declaration of title and
possession filed by an auction purchaser on his failure to take
delivery of the property within one year in terms of Order 21 Rule
95 CPC. The Hon'ble Supreme Court held that a separate suit
at the instance of an auction purchaser for possession is not
maintainable. It is useful to extract Paragraphs Nos.8 & 9 in the
said decision.
"8. A bare perusal of the aforementioned provisions would leave no
manner of doubt and in particular having regard to the amendments
carried in CPC by reason of the CPC Amendment Act, 1976 that the
steps for obtaining delivery of property in occupancy of the judgment
debtor is required to be taken by the auction purchaser in terms of
O.21 R.95 CPC and, thus, a separate suit to enforce such a right
would, therefore, be not maintainable.
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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 Art.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. Art.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 O.21 R.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 Art.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
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application for recovery of possession of any property in possession
of the judgment debtor, it is idle to contend that Art.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
(AIR 1926 Cal 798 : ILR 53 Cal 781 (FB)) has been approved by this
Court in Harnandrai case (1973 (2) SCC 467) in the following terms."
30. Thereafter, the Hon'ble Supreme Court considered whether any
relief could be granted to the decree holder ex debito justitiae
by directing that the Plaint be treated as an application under
Order 21 Rule 95 of the CPC. Their Lordships found that such
a case could have been taken recourse to if a finding was
arrived at by the Trial Court that the suit filed by the plaintiff was
within the period of limitation. Finding that the suit was filed after
the period of limitation under Article 134, the Hon'ble Supreme
Court found that the question of exercising power under ex
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debito justitiae does not arise. The decision in
Lakshminarayana Rao(supra) is on the identical sets of facts
as in this Regular Second Appeal which clearly laid down the
law that separate suit for recovery of possession is not
maintainable by an auction purchaser who failed to take delivery
within one year as required under Article 134.
31. In Balakrishnan(supra) also the main question considered by
the Hon'ble Supreme Court is regarding the issue with respect
to starting point of limitation for the purpose of Article 134. The
Hon'ble Supreme Court followed the decision in Pattam Khader
Khan(supra) and entered a very same finding which was
entered by the Hon'ble Supreme Court in Pattom Khader
Khan that on the failure of the auction purchaser to avail quick
remedy under Order 21 Rule 95, the law relegates him to the
remedy of a regular suit for possession based on title subject to
limitation. As per this decision, a separate suit for possession is
maintainable.
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32. The Division Bench of this Court considered the question in
Vellikkal Anjaneyan(supra). The Division Bench of this Court
considered the decision in Harnandrai and Lakshminarayan
Rao and Pattam Khader Khan(supra) and categorically held
that separate suit at the instance of the auction purchaser who
failed to take delivery within the time allowed under Article 134
is barred under Section 47 CPC. It is useful to extract Paragraph
No.22 of the said decision:
"22. Based on the discussions as above, we may now formulate our
conclusions as follows:
(i) If a specific immovable property is sold in execution of a
decree, it is imperative to take delivery of the same to make the
execution complete within the time as allowed by Art.134 of the
Limitation Act failing which a separate suit for recovery of
possession is barred under S.47 of the Code of Civil Procedure.
(see -- 2005 KHC 1556 : 2005 (9) SCC 354).
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(ii) In case no such application is filed within the prescribed time, instead
a suit is filed within the said prescribed time, then the Court in
appropriate cases can convert the suit into an application under O.21
R.95 CPC ex debito justitiae and grant relief.
(iii) In a given case if actual physical possession cannot be taken,
symbolic possession taken under O.21 R.96 will have the same effect
as though a khas possession is taken, as against the judgment
debtor.
(iv) Effective title to the goods passes on the sale becoming absolute on
confirmation. (see -- 1996 KHC 494 : 1996 (2) KLT SN 47 : 1996 (5)
SCC 48).
(v) In case where the interest of the coparceners is undefined,
indeterminate and cannot be specifically stated to be in respect of any
one portion of the property, a decree cannot be given effect to before
ascertaining the rights of the parties by an appropriate decree in a
partition suit, (see -- 1999 KHC 1094 : 1999 (3) SCC 644 : AIR 1999
SC 1694).
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(vi) If the property sold in execution is the undivided share of the judgment
debtor, the decree holder or any one claiming under him, may take
symbolic delivery of the same under O.21 R.96 of the Code and will
have the same effect of actual possession as against judgment debtor
and will be deemed in joint possession thereafter with the other
sharers. But in case no such delivery is taken, separate suit for
partition as such will not be barred under S.47 of the Code. But if
possession becomes relevant in any given case and in the absence
of such symbolic delivery, the judgment debtor will be deemed to
continue in possession and rights determined accordingly.
(vii) S.47 of the Code provides for relief and bars fresh suit to obtain such
relief. Insofar as partition is not a relief to be granted thereunder, there
cannot be a bar to institute a fresh suit for such relief of partition."
33. After formulating the above conclusions, the Division Bench of
this Court further reiterated that Section 47 will not be a bar to
institute a suit for partition when undivided share of an
immovable property is sold in a court auction and the auction
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purchaser though entitled to apply for symbolic delivery failed to
take such symbolic delivery.
34. In N.G. Aravindakshan Nair(supra) the learned Single Bench
of this Court considered the effect of Section 47 CPC in the light
of the decisions of the Hon'ble Supreme Court in Harnandrai
Badridas and Pattam Khader Khan and Balakrishnan
(supra). The learned Single Judge distinguished the decision of
the Hon'ble Supreme Court in Harnandrai by holding that the
said decision was pronounced before the CPC Amendment Act
1976. Thereafter the learned Single Judge followed the
decisions of the Hon'ble Supreme Court in Pattam Khader
Khan and Balakrishnan (supra) and held that the contention
that suit is barred under Article 134 by virtue of the provisions in
Section 12 and Section 47 and also that in Order 21 Rule 95
CPC cannot be accepted by this Court.
35. Bearing in mind the aforesaid relevant statutory provisions and
precedents, let me examine as to how the aforesaid decisions
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were considered by the Full Bench and what are the
conclusions arrived at by the Full Bench.
36. Both the counsel generously assisted me by taking me through
the Full Bench decision in Danish Varghese (Supra) again and
again in order to have a clear understanding of the law laid down
by the Full Bench. Counsel on both sides are unanimous that
there should be clarity of the answers of the Full Bench to the
reference, by explaining the same.
37. The Full Bench of this Court considered three points as 'A', 'B'
and 'C'. in the decision. They are:
A. What is the starting point of one year limitation period prescribed
under Art.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?
C: If the auction purchaser fails to take delivery of the property within
the limitation period as above, is he entitled to file a fresh suit? and if
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so, what are its limits and appropriate relief which the auction
purchaser is entitled to seek?
38. As far as question of law argued before me, the decision of the
Full Bench under Point No.C alone is relevant. But while
considering Point No.B the Full Bench held that delivery of
possession actual or symbolic of the property sold in execution
by the auction purchaser is the natural and nominal culmination
of sale of immovable property in execution; that in the case of
sale of undivided right delivery can be effected by handing over
symbolic possession of undivided right purchased by the
auction purchaser; that it is imperative on the part of the decree
holder to take possession of the property auctioned by him and
that if he fails to get possession through execution court his
relief under Order 21 CPC is lost though his title over the
property sold subsists. The above finding of the Full Bench
indicates that delivery is part of execution and that if the auction
purchaser fails to take possession through the Execution Court
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within one year as provided under Article 134, his title will not
be lost.
39. Then comes to the next question which is considered in Point
No.C by the Full Bench whether the Auction Purchaser is
entitled to file a fresh suit on the strength of his title.
40. In Paragraph No.26, the Full Bench considered the decision of
the Hon'ble Supreme Court in M.V.S. Manikayala Rao v.
Narasimhaswami [AIR1966 SC470] and it is found that though
the referred question was not the subject matter in the said case
the said decision indirectly indicate that a suit for partition may
lie if the same is not barred under Section 47. It would indicate
that in spite of the bar under Section 47, some types of suits are
maintainable.In paragraph No.27, the Full Bench considered the
decision of the Hon'ble Supreme Court in Pattam Khader Khan
(supra) and found that the Three Judges Bench decisions of the
Hon'ble Supreme Court in Manikayala Rao (supra) and
Harnandrai (supra) were not referred to. In Paragraph No.29,
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the decision of the Hon'ble Supreme Court in
Lakshminarayana Rao (supra) is considered and found that
separate suit is not maintainable. In Paragraph No.30 the
Division Bench decision of this Court in Anjaneyan (supra) is
considered and found that it followed the decision of the Hon'ble
Supreme Court in Lakshminarayana Rao (supra). In
paragraph No.31 the Single Bench decision of this Court in
Aravindakshan Nair(supra) is considered.
41. In Paragraph No.33, the Full Bench specifically found that the
question whether the auction purchaser who fails to file an
application under Order 21 Rule 95 is entitled to file a fresh suit
was not the subject matter directly in issue in Pattam
Khaderkhan (supra) and it was neither considered incidentally
also. The Full Bench entered in categorical finding that the
observation in Paragraph No.13 of Pattam Khader Khan
relegating the party to the remedy of filing fresh suit in case of
failure to file an application for delivery seems to be a passing
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reference. In paragraph No.34 the Full Bench specifically
entered a finding that the observation in Pattam Khader
Khan(supra) which was followed in Balakrishnan (supra) as
a precedent was without reference to the spirit of Sections 12
and 47 CPC, provision relating to sale as contemplated under
Order 21 CPC and Amendment to Article 134. It is further held
that if the reliefs which could be availed under Order 21 Rule 95
is barred by limitation same relief can be sought thereafter by
way of a fresh suit will make Section 47 redundant in such
cases. The Full Bench specifically held that Pattam Khader
Khan(supra) cannot be considered to lay down binding
precedent of law and that the view laid down in
Lakshminarayana Rao and Manikayala(supra) should prevail
regarding the claims which arise from the execution, discharge
satisfaction of the decree.
42. Then Full Bench considered about the claims/disputes outside
the scope of Section 47 CPC. Those claims and disputes could
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only be those which do not relate to execution, discharge and
satisfaction of the decree.
43. In Paragraph No.40, the Full Bench entered a finding that if a
narrow interpretation is given to the word 'delivery of
possession' occurring in S.47 and order 21 Rule 95 what is
prohibited by filing a separate suit is only an attempt to seek
delivery of possession as a sequel to court sale and not a suit
for possession on the strength of title. In Paragraph No. 41, the
Full Bench referring to the decision Lakshminarayana
Rao(supra) expressed that the question considered therein
was whether the provision of S.136 of the Limitation Act would
apply. After referring to Article 65 of the Limitation Act, the Full
Bench held in Paragraph No. 43 that the law does not prevent
the auction purchaser in filing a suit for recovery of possession
of the property on the strength of title in terms of Article 65 of
the Limitation Act, which apparently provides for a larger period
of limitation. The Full Bench also referred to Explanation (c) of
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Article 65 which takes care of an instance where a suit is filed
by a purchaser at the sale in execution of the decree in case
where the judgment debtor was out of possession as on the date
of sale.
44. The aforesaid discussion will reveal that the Full Bench followed
Lakshminarayana Rao(supra) and not Pattam Khader
Khan(supra). The Full Bench considered about the
claims/disputes outside the scope of Section 47 CPC, while
finding that separate suit on the strength of title is maintainable.
In such case, the suits found to be maintainable by the Full
Bench could only be the suits for recovery of possession by
auction purchaser, which is not prevented by Section 47. Those
are the suits referred in Clause (c) of Explanation to Article 65
of the Limitation Act. The suits which are covered under
Clause(c) of Explanation to Article 65 are the suits where the
judgment debtor was out of possession on the date of sale. In
other words, the suits which are found to be maintainable in
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Paragraph No.43 are the suits not against the judgment debtor
who has exclusive possession of the property, but the suits
against the persons who are in possession of the property as on
the date of sale other than the judgment debtor and the suits at
the instance of an auction purchaser who could take only
symbolic delivery of the property. The Full Bench did not lay
down a law an absolute legal proposition that a suit against the
judgment debtor under Article 65 of the Limitation Act, is
permissible if the auction purchaser fails to obtain delivery by
filing application within one year as provided under Article 135.
The suits which are not barred under Section 47 are covered
under Clauses (iii), (vi) & (vii) of Paragraph 22 of the Division
Bench decision of this Court in Vellikkal Anjaneyan(supra), i.e,
cases in which undivided share or symbolic delivery under
Order 21 Rule 96 is taken since actual possession could not be
taken.
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45. In paragraph 44 the Full Bench expressed the view that the said
right will depend upon the pleadings of the parties and the
respective contentions in this regard. It is reiterated that as far
as an auction purchaser is concerned he can seek delivery of
possession by approaching the execution court and not by a
separate suit. It is true that the Full Bench expressed that in the
decision in Lakshminarayana Rao(supra), the Hon'ble
Supreme Court has not considered whether a suit for
possession on the strength of title would be maintainable or not
and that their Lordships felt that if the view expressed is not
possible the auction purchaser who has a valid title will not be
in a position to recover possession of the property at any point
of time and its title will become a dead paper. The Full Bench
followed the decisions in Lakshminarayana Rao of the Hon'ble
Supreme Court and Anjaneyan of the Division Bench of this
Court. It is further held that it is difficult to treat the last sentence
in Paragraph 13 of the decision of Pattam Kadher khan (which
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states that on failure to avail quicker remedy the law relegates
the auction purchaser to the remedy of a suit for possession in
a regular way) as an absolute proposition, in view of the teeth
of clear, unequivocal and unambiguous provisions contained in
S.47 against filing of a suit by an auction purchaser to recover
possession of the property purchased by him. The Full Bench
held that in relation to claims which do not arise in relation to
discharge, satisfaction or execution of decree and a suit for
possession on the strength of title which falls within Article 65 of
the Limitation Act, a fresh suit may be maintainable. The said
finding would indicate that a suit under Article 65 of the
Limitation Act, on the strength of title is maintainable. Such suit
could only be a suit coming under Clause (c) of Explanation to
Article 65. This is very much clear from the succeeding
sentences to the above finding that in case of a person who
procures undivided right over the auctioned property, his right
under Order 21 CPC terminates with delivery of symbolic
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possession of the undivided right and that it will not preclude
him from seeking partition of the property by a suit.
46. The Full Bench concluded by answering the reference holding
that on failure of an auction purchaser to apply for delivery as
provided under Order 21 Rule 95 CPC, his right to file a fresh
suit for enforcing delivery in execution is barred and that suits
which do not offend S.47 CPC and suits for possession on the
strength of title deed including purchase certificate that fall
within the frame work of Article 65 of the Limitation Act, would
be maintainable. By this conclusion, the Full Bench has made
it clear that only two categories of suits alone are maintainable
in view of the bar under S.47 CPC. The first one is that the suits
which do not offend S.47 , i.e; if the suit does not relate to
discharge, satisfaction or execution of the decree. Secondly,
suit for possession on the strength of title deed including Sale
Certificate within the frame work of Article 65. The Full Bench
itself has made it clear that if a fresh suit for recovery of
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possession is permitted that will virtually make S.47 CPC
redundant. Thus the suits within the frame work of Article 65 of
the Limitation Act, which is referred by the Full Bench can only
be the suit covered under Clause (c) of Explanation to Article 65 and
not a regular suit for possession against the judgment debtor
himself who is having exclusive possession over the property.
47. The learned counsel for the contesting respondents contended
that a suit for recovery of possession on the strength of title does
not come under the category of discharge, satisfaction or
execution of the decree and the suit on the strength of Sale
certificate under Article 65 is maintainable and the same is not
barred under S.47. S.47 refers to only execution, discharge and
satisfaction of the decree. Obtaining delivery of possession is a
part of execution. Delivery of possession is obtained under
Order 21 Rule 95 in the case of actual possession and under
Order 21 Rule 96 in the case of symbolic possession. Then a
question arises whether obtaining delivery of possession and
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recovery of possession is one and the same. The purpose of
both these proceedings, i.e; the proceedings under Order 21
Rule 95 CPC and the suit for recovery of possession is to obtain
possession of the property. In case of suit for recovery of
possession also the possession is obtained by obtaining
delivery as per Rule 347 of the Civil Rules of Practice. The suit
for recovery of possession also ends in taking delivery of the
property through execution proceedings. Hence, the suits for
recovery of possession under Article 65 of the Limitation Act by
the auction purchaser who failed to take delivery, other than
coming under clause (c) of Explanation to Article 65 is barred
under Section 47 CPC.
48. The CPC Amendment Act of 1976 did not make any change to
Section 47(1).Only change made by the Amendment by
inclusion of Explanation II is that the auction purchaser in the
court sale is also treated as a party to the said. Hence the suit
at the instance of the auction purchaser is barred only with effect
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from the date of amendment. The Three Judges Bench
decision in Harnandrai Badridas (supra) has specifically laid
down the law that all questions arising between the auction
purchaser and the judgment debtor must be determined by the
Executing Court and not by a separate suit following the
decision of the Privy Council in Ganapathy v.
Krishnamachariar [AIR 1917 PC 121] interpreting Section 47
CPC. Thus, even before the Amendment, the Hon'ble Supreme
Court laid down the law that Section 47 is applicable to auction
purchaser also. Since there is no change in S. 47 (1) as per the
CPC Amendment Act of 1976, the Three Judges Bench
decision of the Hon'ble Supreme Court in Harnandrai Badridas
(supra) still governs the field. It could not be ignored holding
that the same was rendered prior to the CPC Amendment Act
of 1976.
49. In the Limitation Act, 1908, the limitation period for filing an
application for delivery was three years under Article 180. The
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said period was reduced to one year under Article 134 of the
Limitation Act, 1963. It is seen from the discussion in the
judgment in Balakrishnan (supra) that the period of three years
was reduced to one year for finalising the execution as quickly
as possible by providing a quick forum to the auction purchaser
to ask for the delivery of possession of the property purchased
within that period from the date of sale. Article 134 only provides
limitation for filing of an application for delivery and not providing
the period for completing the proceedings to obtain delivery. If
the reduction of limitation period was to protect the interest of
the auction purchaser, now it has turned detrimental to the
interest of the auction purchaser in view of the mandate under
Section 47 of CPC. Under Article 65, the limitation period of 12
years therein starts only when the possession of the defendant
becomes adverse to the plaintiff, otherwise the limitation period
of 12 years will not start. So in the absence of adverse
possession by the defendant, there is no limitation period for a
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suit for possession on the strength of title. It would be an
injustice if the auction purchaser is not permitted to file a suit for
possession on the strength of title within the limitation period in
Article 65 against the judgment debtor to obtain possession in
case he fails to obtain delivery within one year, like any other
title holder. The remedy under Order 21 Rule 95 CPC is to be
construed as a quicker remedy which should not bar the regular
remedy of filing suit for recovery of possession. The Sale
Certificate issued under Order 21 Rule 94 CPC is also a valid
document of title just like any other title. It has more sanctity as
it is issued by a Court. Hence, it is an injustice to treat the Sale
Certificate separately, providing a separate lesser period of
limitation when compared to the other title deeds. Since the law
is laid down by the Full Bench of this Court in Danish Varghese
(supra) resolving the conflict of judicial opinions in different
decisions, I am bound to follow the said Full Bench decision. I
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have only explained the true dictum laid down by the Full Bench,
nothing more or nothing less.
50. The present suit is filed for recovery of possession by the
plaintiff who was an auction purchaser in the execution
proceedings in the earlier suit in O.S No. 498/1994 of the Sub
Court, Alappuzha who did not obtain delivery of the property in
the execution proceedings. The present suit does not come
within the scope of clause (c) of Explanation to Article 65 of the
Limitation Act and hence the same is clearly barred under S.12
and S.47 CPC.
51. In view of the aforesaid discussions, I answer the Substantial
Question of Law No.1 in the affirmative and the Substantial
Question of Law No.2 in the negative, both in favour of the
appellant and against the respondents.
52. Accordingly, I allow this Regular Second Appeal without costs
setting aside the judgment and decree passed by the Trial Court
which is confirmed by the First Appellate Court and dismissing
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O.S.No. 537/2015 filed by the plaintiff before the Principal
Munsiff's Court Alappuzha.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
