In the case of K. R. Lakshminarayana Rao Vs. New Premier Chemical Industries, (2005)9 S.C.C. 354, the plaintiff/decree holder himself purchased the property in the year 1972. Auction sale was confirmed in the year 1973. Sale certificate was issued in favour of plaintiff/respondent on 28.11.1980. The respondent did not however take any step to obtain delivery of possession of the said property within a period of one year in terms of Order 21, Rule 95 of the C.P.C.. In the year 1998, the plaintiff-respondent filed a suit praying for declaration of title and possession of the suit property, which was dismissed by the Trial Court. It is observed in para 8 that a bare perusal of provisions of Order 21, Rule 95 of C.P.C. would leave no manner of doubt and in particular having regard to the amendments carried in C.P.C. by reason of the C.P.C. 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 Order 21, Rule 95, C.P.C. and, thus a separate suit to enforce such a right would, therefore, be not maintainable. In para 9 of the said case it is observed that application under Order 21, Rule 95 must be filed within the prescribed period of limitation as provided for under Article 134 of the Limitation Act, 1963. After referring to the cases of Kailash Shankar (Supra), Harnanadrai (Supra) etc. it is observed that High Court committed error in holding that even if suit was not maintainable, the Court has ample power to treat the plaint to be application filed under Order 21, Rule 95 of the C.P.C.. It was held that this cannot be done since the suit was not filed within one year. So, the judgment in the case of K.R. Lakshminarayanaya Rao (Supra) clearly shows that separate suit is not tenable.
22. So, the above discussion clearly shows that separate suit is not tenable. Since suit was not filed within one year after sale becoming absolute, it could not be treated as application under Order 22, Rule 95 of the C.P.C.. Mainly relying on the ratio laid down in the case of K. R. Lakshminarayanaya Rao (Supra), in which property was put on auction and sold in 1972, the auction sale was confirmed in the year 1973, and the suit was filed in 1998, I hold that the present appeal must be allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
P.R. BORKAR, J.
Baburao Vishwanath Dighe Vs. Kisan Bhivaji Sanap
Second Appeal No.328 of 1990
24th November, 2009
Citation: 2010(1) ALL MR 756
2. Briefly stated, the present respondent who was the original plaintiff filed suit stating that the wife of present appellant/defendant, Bhagirathibai, filed Regular Civil Suit No.27 of 1953 against the appellant for maintenance. For execution of decree obtained by her, Bhagirathibai filed Regular Darkhast No.40 of 1968 against the present appellant. In that Darkhast out of land Survey No.31/2, 1 Hectare, 60 R portion on the Eastern side, situated at Arampur, Tal.-Sangamner, was put on sale. The present respondent/plaintiff purchased said 1 Hectare, 60 R portion of Survey No.31/2. The auction sale was confirmed by the Court on 18.06.1969 and on 24.11.1978 sale certificate was issued. As per respondent/plaintiff, since he has become owner of the suit land by virtue of purchase in auction sale, he demanded possession. However, the defendant refused to handover possession and, therefore, the plaintiff filed suit for getting possession. The suit is admittedly filed on 09.02.1979.
3. The appellant/defendant filed written statement at Exh.16 and denied the suit-claim. According to him suit is not within limitation. He admitted that Regular Darkhast No.40 of 1968 was filed by his wife Bhagirathibai, but according to him the plaintiff/respondent could not get and acquire ownership rights over the suit land on the basis of sale-deed. He contended that he himself had purchased the property through the plaintiff/respondent as Benami. The plaintiff was Benamidar. The suit filed in 1979 is not tenable. In the written statement Exh.16, specific plea was taken that assuming that sale was made absolute and sale certificate was issued, as per Article 134 of the Limitation Act, the possession should have been claimed within one year and therefore the suit is time barred and the appellant/defendant has become owner by virtue of Section 27 of the Limitation Act. He also contended that the suit is not tenable.
4. The learned Civil Judge framed necessary issues and came to a conclusion that it was not a Benami transaction. The suit is not barred by limitation. The plaintiff/respondent was entitled to possession. The suit was decreed.
5. Above said decree passed by the Trial Court was challenged in Regular Civil Appeal No.160 of 1984. In the appeal it was contended that the suit was barred by limitation. It was also argued that the plaintiff/respondent ought to have preferred application for obtaining possession and the suit is not tenable. But, his contentions were rejected.
6. The learned District Judge considered the scheme of Order 21 of Code of Civil Procedure (for short "C.P.C."), particularly he considered provisions relating to various stages after auction sale. The learned District Judge referred to Article 134 of the Limitation Act. He also referred to the case of Dharamchand Vs. Nandlal and Ors., AIR 1981 RAJASTHAN 38. In that case the auction purchaser has filed application in the executing Court, but the application was dismissed on the ground that it was barred by limitation. The Single Bench of Rajasthan High Court referred to new provisions of C.P.C. and held that separate suit is barred. The purchaser in execution of the decree must be deemed a party to the suit till possession of the property purchased by him is delivered to him and therefore it was held that separate suit was also barred. However, the learned District Judge relied upon case of Tincourie Vs. Shrikishan, AIR 1955 CALCUTTA 369. It was held therein that there was no bar to file suit and different periods have been described for different types of remedies. One period of limitation is prescribed for filing application under Order 21, Rule 95 of C.P.C. and other period is prescribed for filing suit on the basis of title acquired by the auction purchase. In the circumstances the appeal was dismissed by the learned District Judge.
7. It is vehemently argued before this Court relying on the various authorities that under Section 47 of the C.P.C., separate suit is barred and plaint cannot be considered as application under Order 21, Rule 95 of the C.P.C., as it was not filed within one year after the sale has become absolute. On the other hand the learned advocate for the respondent argued that though the application under Order 21, Rule 95 of the C.P.C. is time barred, the remedy of suit is available and the suit filed within 12 years is tenable. It is argued before me that Section 47 of the C.P.C. is amended in 1976 by Act of 104 of 1976 and it came into force on 01.02.1977 and already right to file suit as per earlier law was vested in the plaintiff/respondent and he has filed the suit within limitation.
8. I may reproduce provisions of Section 47 of the C.P.C. for ready reference :
"47. Questions to be determined by the Court executing decree.- (1) 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.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I- For the purpose of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
9. It may be noted that explanation II to sub-section 3 of Section 47 was added by the Amendment Act of 104 of 1976, which came into force on 01.02.1977. Prior to said amendment, the explanation to sub-section 3 was as follows :
"Explanation- For the purposes of this section, a plaintiff whose suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit."
So, as per earlier explanation, which was in force prior to 01.02.1977, the purchaser at a sale in execution of the decree was treated as party to the suit.
10. Order 21, Rule 95 of C.P.C. is as follows :
"Delivery of property in occupancy of judgment-debtor.- Where the immovable property sold is in the occupancy of the judgment-debtor or of same 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."
11. The earliest case cited is Ganapathy Mudaliar Vs. Krishnamachariar and Ors., AIR 1917 Privy Council 21. In that case it is laid down that Section 47 applies in a case in which the question raised concerns the auction purchaser at an auction sale as well as the parties to the suit. In that case sale was challenged and it was held that the question raised in the suit could have been raised before the sale was confirmed and if so raised would have been determined by the Court, which was executing Court. So, the case does not directly apply to the issue before this Court.
12. The next case is of Tincourie Mazumdar and anr. Vs. Sri Kishan Chand Boral and Anr., AIR 1955 CALCUTTA 369, which was referred to by the District Judge in his judgment and which he has relied upon in the present matter. In that case the Court has held that the auction purchaser has two remedies. He may make application to the executing Court and he has also remedy of filing suit for which there is limitation of 12 years from the date when the sale becomes absolute. In para 10 of the said case, reference was made to Fakirappa Vs. Nigappa, AIR 1943 Bom. 265, in which it is laid down that if the judgment debtor or any person claiming under him remains in possession for the requisite period limited by Section 28 of the Limitation Act for the institution of a suit for recovery of possession, the right of the auction purchaser would be extinguished and the right so extinguished would become vested in the adverse possessor at the expiration of the period so limited. So, even Bombay High Court has then taken view that a separate suit is tenable.
13. Next case cited is of the Supreme Court viz. Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and Ors., (1973)2 S.C.C. 467. In that case Their Lordships considered Section 47 of C.P.C. and question was whether a decree holder after auction sale in execution of a decree can move the executing Court for delivery of vacant possession of an immovable property. It was observed that the decree holder who has been a party to the decree will not 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 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 relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit. Reference was made to a decision of Privy Council in Gapanathy's case (Supra) and it is observed that thereafter there was amendment to Section 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 Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment debtor must be determined by the executing Court and not by a separate suit.
14. The next case cited is the case of Dharamchand Vs. Nandlal and Ors., AIR 1981 RAJASTHAN 38, referred to by the District Judge in his judgment in the present matter. In para 8 of the said case it is held that the purchaser at a sale in execution of the decree must be deemed a party to the suit till possession of the property purchased by him is delivered to him and therefore all questions relating to delivery of possession under Order 21, Rule 95 relate to execution, discharge and satisfaction of the decree and no separate suit for possession of the property purchased by the auction purchaser can legally be filed by him after dismissal of his application under Order 21, Rule 95 by the Court of execution on the ground of having been filed beyond the period of limitation of one year. The only course open to the auction purchaser in such a case is to prefer an appeal against the order of dismissal of his application under Order 21, Rule 95. The learned advocate for the respondent argued that here no application under Order 21, Rule 95 was filed by the respondent. The law laid down in the case is that the question of delivery of possession between auction purchaser and the judgment debtor should be decided not by separate suit but in the execution proceedings.
15. Division Bench of this Court in the case of Ghanshyamdas Vallabhadas Gujrathi Vs. Brijraman Rasiklal, 1984(2) Bom.C.R. 50, in para 6 it is observed as follows :
"6. The learned Counsel for the appellant-defendant next contends that the proper remedy for the plaintiff was to apply for recovery of possession of the suit property in execution and that the suit for that purpose was barred by Section 47 of the Code of Civil Procedure. In support of his contention he relied on the decision in (Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and Ors.) AIR 1973 S.C. 2423. We have gone through the decision and we find that it is not applicable to the facts of the present case. It may be mentioned that an auction purchaser can apply for delivery of possession, and that application is governed by Article 134 of the First Schedule to the Limitation Act of 1963, which provides that the application has to be made within one year from the day the sale becomes absolute. The limitation for suit on the basis of title is provided in Article 65 of the First Schedule to the Limitation Act of 1963 and the limitation starts running from the time the possession of the defendant becomes adverse to the plaintiff. It is pertinent to note that in the Indian Limitation Act, 1908, Article 138 of the First Schedule provided limitation of 12 years for a suit by a purchaser at a sale in execution of a decree, when the judgment-debtor was in possession at the date of the sale and the period of limitation began from the date the sale became absolute. In the Limitation Act of 1963 the corresponding provisions are contained in Article 65 ibid and there is marked change in providing the commencement of the period of limitation. After the Limitation Act of 1963 came into force, the possession of an immovable property on the basis of title could be sought by filing a suit within 12 years from the day the possession of the defendant becomes adverse to the plaintiff. Thus there are two remedies available to the auction purchaser. He can apply in execution for delivery of possession within a period of one year from the date the sale becomes absolute, and he can also institute a suit for recovery of possession within 12 years from the date possession of the defendant becomes adverse to him. The defendant never raised any question concerning the nature of the rights purchased by the plaintiff at the auction sale. On the contrary, he by various letters addressed to the plaintiff (Exs.49 to 53) accepted the title of the plaintiff and offered to deliver possession out of Court. Consequently, there is no merit in the contention of the learned Counsel for the appellant defendant that a suit for possession of the property cannot be instituted by auction purchaser in view of the provisions of Section 47 of the Code of Civil Procedure."
So, according to the Division Bench of this Court, besides remedy to file application under Order 21, Rule 95 of C.P.C., there is alternate remedy of filing suit for possession within 12 years as per Article 65 of the Limitation Act. The Division Bench referred to the case of Harnandrai (Supra) and held that both courses were open to the auction purchaser. It is argued relying on this judgment that in the present case the sale was confirmed by the Court on 18.06.1969, which was prior to the amendment of Section 47 by the Act 104 of 1976. Thus the remedy of filing separate suit for possession by action purchaser is available to the respondent/plaintiff as cause of action for filing the suit has arisen before the amendment came into force and said remedy is not taken away retrospectively. It is also argued that such right of filing suit for possession on title already vested in the respondent/plaintiff cannot be said to have taken away by subsequent amendment when already remedy of filing application under Order 21, Rule 95 is barred by Section 134 of the Limitation Act, 1963.
16. Article 134 of the Limitation Act is as follows :
Description of Suit | Period of Limitation | Time from which period begins to run |
134. For delivery of possession by a purchaser of immovable property at a sale in execution of a decree. | One year | When the sale becomes absolute. |
17. In Ganpat Singh (dead) by L.Rs. Vs. Kailash Shankar and Ors., AIR 1987 S.C. 1443, the mortgagee decree holder in execution of final decree for mortgage himself purchased the disputed property in auction sale. It is held in paras 8 and 11 as follows :
"8. Under clause (a) of Explanation-II the auction-purchaser shall be deemed to be a party to the suit in which the decree is passed. Under clause (b), all questions relating to the delivery of possession shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of section 47. Section 47 bars determination of any question relating to the execution, discharge or satisfaction of the decree in a suit. Such question shall be determined by the executing court. As has been already noticed, in view of clause (a) of Explanation-II, the auction-purchaser shall be deemed to be a party to the suit in which the decree is passed and under clause (b) of Explanation-II all questions relating to delivery of possession shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree. Such questions, therefore, are to be determined by the court executing the decree and not by a separate suit."
x x x x x
"11. It appears that the learned Judge of the High Court has misunderstood the scope of the provision of section 47 of the Code of Civil Procedure and that of the provisions of Articles 134 and 136 of the Limitation Act, 1963 . It may be that before the amendment of section 47 of the Code, an auction-purchaser could file a suit for recovery of possession of the property within 12 years from the date of sale, but in view of the amendment of section 47 of the Code such a suit cannot be filed. But that is no ground for holding that Article 136 of the Limitation Act would apply to an application for delivery of possession. Under the old Limitation Act of 1908, an application for delivery of possession could be made within three years from the date on which sale became absolute as prescribed by Article 180 of that Act, but under Article 134 of the Limitation Act, 1953 such an application can be made within one year from the date on which sale became absolute. ........"
18. Thus, it is argued that prior to the amendment to Section 47 of C.P.C., a suit was tenable and in this case the sale had become absolute in 1969 and at that time cause of action arose and the auction purchaser i.e. the respondent has remedies of both filing suit for possession, so also making application under Order 21, Rule 95 of the C.P.C..
19. Single Bench of Andhra Pradesh High Court in the case of Vegendla Subba Rao Vs. Puvvada Srinivasa Rao and Ors., AIR 2005 A.P. 449, referred to Section 47 and held that the freedom of auction purchaser to work out his remedies, in relation to delivery of property stood curtailed, and restricted to one, of seeking determination of the same in the same suit, meaning thereby, in the same execution proceedings. Filing of a separate suit for this purpose is barred.
20. In the case of K. R. Lakshminarayana Rao Vs. New Premier Chemical Industries, (2005)9 S.C.C. 354, the plaintiff/decree holder himself purchased the property in the year 1972. Auction sale was confirmed in the year 1973. Sale certificate was issued in favour of plaintiff/respondent on 28.11.1980. The respondent did not however take any step to obtain delivery of possession of the said property within a period of one year in terms of Order 21, Rule 95 of the C.P.C.. In the year 1998, the plaintiff-respondent filed a suit praying for declaration of title and possession of the suit property, which was dismissed by the Trial Court. It is observed in para 8 that a bare perusal of provisions of Order 21, Rule 95 of C.P.C. would leave no manner of doubt and in particular having regard to the amendments carried in C.P.C. by reason of the C.P.C. 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 Order 21, Rule 95, C.P.C. and, thus a separate suit to enforce such a right would, therefore, be not maintainable. In para 9 of the said case it is observed that application under Order 21, Rule 95 must be filed within the prescribed period of limitation as provided for under Article 134 of the Limitation Act, 1963. After referring to the cases of Kailash Shankar (Supra), Harnanadrai (Supra) etc. it is observed that High Court committed error in holding that even if suit was not maintainable, the Court has ample power to treat the plaint to be application filed under Order 21, Rule 95 of the C.P.C.. It was held that this cannot be done since the suit was not filed within one year. So, the judgment in the case of K.R. Lakshminarayanaya Rao (Supra) clearly shows that separate suit is not tenable. It may be noted that in that case also auction sale was confirmed in 1973 before the amendment was carried to C.P.C. by Act 104 of 1976. So, the argument advanced by the advocate for respondent has no merit, that since sale was confirmed in 1969, the plaintiff will have both remedies and he has right to file the suit.
21. The last case cited is of Balakrishnan Vs. Malaiyandi Konar, 2006(2) Bom.C.R. 520 : [2006(2) ALL MR 159 (S.C.)]. In that case the appellant was decree holder in execution proceedings. He purchased property in Court auction. The sale was confirmed on 22.08.1983 and application for delivery of possession under Order 21, Rule 95 of C.P.C. was filed on 13.08.1993. It was held that the application was clearly time barred. It is also held that the sale become absolute on confirmation under Order 21, Rule 92 of the C.P.C. effectively passing title.
22. So, the above discussion clearly shows that separate suit is not tenable. Since suit was not filed within one year after sale becoming absolute, it could not be treated as application under Order 22, Rule 95 of the C.P.C.. Mainly relying on the ratio laid down in the case of K. R. Lakshminarayanaya Rao (Supra), in which property was put on auction and sold in 1972, the auction sale was confirmed in the year 1973, and the suit was filed in 1998, I hold that the present appeal must be allowed.
23. In the result, the judgments and decrees passed by the Trial Court and the First Appellate Court are hereby quashed and set aside. The original suit for possession stands dismissed. Parties to bear their own costs.
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