GANPAT SINGH Vs. KAILASH SHANKAR

JUDGEMENT

(1.) This appeal on a certificate granted under Art. 134A of the Constitution is at the instance of the heirs and legal representatives of a deceased judgment-debtor and is directed against the judgment of a learned single Judge of the Rajasthan High Court whereby the learned Judge upheld the order dated December 12, 1980 of the learned District Judge, Jaipur City, Jaipur, holding that in view of Art. 136, Limitation Act, 1963 the application of the decree-holder auction-purchaser for delivery of possession of the property auctioned-purchased by him was maintainable and not barred by limitation. The certificate on the basis of which the appeal is filed is not competent in view of cl. (3) of Art. 133 of the Constitution, we have however treated the appeal as one under Art. 136 of the Constitution. The special leave to file the appeal is granted by us.

(2.) The mortgagee decree-holder in execution of the final decree for mortgage himself purchased the disputed property in the auction -sale held on July 14, 1978 at a sum of Rs. 38,000/-. On September 20, 1978, the judgment-debtor Ganpat Singh, since deceased, the predecessor-in-interest of the appellants, filed an application under O.XXI R. 90, Civil P.C., for setting aside the sale. Two other petitions of objections were filed by one Chiranji Lal and by another judgment-debtor, Mst. Abhey Kanwar. All these objections including the application of Ganpat Singh under O. XXI R. 90 C.P.C., were dismissed for default and, consequently, the sale was confirmed by the learned. District Judge, the executing court, on January 2, 1979.

(3.) On July 17, 1980, that is, more than one year after the sale was confirmed, the decree-holder auction-purchaser filed an application under O. XXI R. 95, C.P.C. for delivery of. possession of the property auctioned-purchased by him. The said application was opposed by the judgment-debtor Ganpat Singh on the ground that as the application was filed more than one year after the confirmation of sale, it was barred by limitation under Art. 134, Limitation Act.