PATTAM KHADER KHAN Vs. PATTAM SARDAR KHAN

JUDGEMENT

(1.) Pattam Rasool, the second respondent herein, filed a suit before the civil court for partition and separate possession, claiming one- sixth share in a residential house in the town of Nellore in the State of A. P. Pattam Khader Khan, the appellant herein, was one of the defendants therein. On 7/1/1977, a preliminary decree was passed by the court in his favour. Thereafter, the plaintiff/second respondent made an application for appointment of an Advocate Commissioner for effecting partition, which was allowed. The Commissioner becoming seisin of the matter, reported to the trial court that the house was not partible and resort be had to a sale thereof, so that the sale proceeds can be apportioned amongst the co-sharers. A public auction was thus on permission conducted by the Commissioner, whereby the sale was knocked down in favour of the first respondent, Pattam Sardar Khan; no other than the son of the plaintiff, at a price of Rs. 17,000. 00. No objection of any sort from any quarter was raised against the sale or the conduct thereof. The sale was thus confirmed by the court on 7/8/1984. A sale certificate was issued in favour of the auction- purchaser about five and quarter years later on 9/11/1989. The matter in this way stood finalised.

(2.) Having obtained the sale certificate, an application under Order 21 Rule 95 read with Section 151 of the Civil Procedure Code was moved by the auction-purchaser first respondent on 9/11/1989, seeking delivery of possession of the auctioned house. An objection was raised thereto by the appellant staling that since the application of the first respondent was barred by the limitation prescribed under Article 134 of the Limitation Act, 1963, no order for delivery of possession could be given in favour of the first respondent. The executing court of the District Munsif, Nellore, on 14/12/19900 sustained the objection regarding the bar of limitation, which made the first respondent move the High court of A. P. at Hyderabad in revision. The High court on 29/11/1993 allowed the revision petition of the first respondent, holding that he was entitled to take possession of the house purchased. Hence this appeal by the objector.

(3.) The fate of this appeal depends on the way in which the High court has understood and applied the decision of the Privy council in Chandra Mani Saha v. Anarjan Bib. The High court has gathered therefrom that the period of limitation for filing an application by the auction-purchaser, for delivery of possession of the property purchased, does not start until the matter stands concluded finally against the judgment-debtor, as well as until the sale certificate is issued to the auction-purchaser, after the dismissal of all objections in the appellate stages, and that the limitation under Article 180 (now. Article 134 in the Limitation Act) would run from the date of theissuance of the sale certificate. But, the High court has, in our view committed an error in reading the Privy council decision in that manner, as a would presently be seen.