ABDUL UBEDULLA Vs. NOORJAHN

JUDGEMENT

(1.) This writ petition is filed by the auction purchaser in a Court sale whose application under Order 21 Rule 95 CPC seeking delivery of possession of the property purchased in Court auction is rejected on the ground that the application is barred by limitation.

(2.) Respondent Nos. 1 to 5 filed a suit, O.S. No. 123/1999 on the file of Principal Civil Judge (Junior Division), Madhugiri, against 6th respondent seeking a decree for maintenance and creation of charge in respect of two items of schedule properties. The said suit, after contest, came to be decreed on 06.11.2003 granting monthly maintenance of Rs.400/- to the 1st respondent and Rs.300/- to each of respondent Nos. 2 to 5. 6th respondent was also directed to pay cost of Rs.1,254/- and charge was created on item Nos. 1 and 2 of the schedule properties. 6th respondent preferred R.A. No. 162/2003 challenging the said judgment and decree, but the judgment and decree of the trial Court was not stayed therein. Therefore respondent Nos. 1 to 5 filed execution petition Ex. No. 39/2004 on 07.04.2004 for recovery of arrears of maintenance of Rs.6,159/- and also sought for attachment and sale of properties on which the charge had been created. In the meanwhile appeal filed by 6th respondent came to be dismissed confirming the judgment and decree of the trial Court against which order 6th respondent preferred no appeal and therefore it attained finality. On the death of 6th respondent his legal heirs born through the first wife were brought on record, but they too did not satisfy the decree. Therefore suit item No. 1 was brought to sale after attaching the same in the execution proceedings. In the Court auction held on 16.01.2007, the petitioner herein was declared to be the highest bidder; he deposited the bid amount within the time stipulated and the sale in his favour was confirmed on 20.08.2008. The sale certificate came to be issued on 16.01.2009.

(3.) The petitioner herein filed a petition under Order 21 Rule 95 CPC on 09.09.2009 in Misc. Petition No. 7/2009 seeking delivery of possession of the property purchased by him in the Court auction. The legal representatives of deceased 6th respondent filed their statement of objections contending that the application filed under Order 21 Rule 95 CPC is to be dismissed as barred by limitation under Article 134 of the Limitation Act. The executing Court, after considering the rival contentions and after taking note of the decisions on which reliance was placed by both the parties, came to the conclusion that the limitation for filing an application under Order 21 Rule 95 CPC starts from the date of confirmation of sale and not from the date of issuance of sale certificate; the miscellaneous petition filed on 09.09.2009 is time barred and therefore dismissed the petitioner's application. Aggrieved by the said order, the petitioner is before this Court.