DANISH VARGHESE Vs. JANCY DANISH

JUDGEMENT

(1.) The short legal issue referred to Full Bench by the order of Division Bench is whether an auction purchaser in a court $ale is entitled to file a separate suit for declaration of title and recovery of possession of the auctioned property based on the sale certificate issued by the Execution Court, after the period of limitation of one year from the date when the sale became absolute, as provided under Article 134 of the Limitation Act.

(2.) Brief facts are essential for a proper consideration of the issue involved:

(3.) On 29/12/2010, the respondent herein filed O.P. No. 1377/2010 before the Family Court, Alappuzha seeking recovery of possession of the property assigned to her by the sale certificate. The relief sought in the above petition was to pass a decree of recovery of possession directing the appellant to put the respondent in possession and if he fails to do so, to allow the recovery of possession. The appellant herein raised an objection that the petition was hit by Article 134 of the Limitation Act 1963, which prescribed one year period for seeking delivery of the property sold in court auction, reckoned from the date when the sate became absolute. The above petition was allowed by the Family Court, Alappuzha by order dated 17/7/2012. It was held by the Trial Court that limitation under Article 134 of the Limitation Act starts from the date of confirmation of sale, though title effectively passes to the auction purchaser under Order XXI Rule 92 of the Code of Civil Procedure. It was held that in such cases, if an application for delivery is not filed within the period prescribed under Article 134 of the Limitation Act, remedy open was to sue for possession based on title. To reach the above conclusion, the learned Family Court Judge placed reliance on the judgment of the Supreme Court in Balakrishnan v. Malaiyandi Konar [(2006) 1 KLT 1 (SC) wherein it was held that the decree holder who fails to file application for delivery in terms of Art.134 of Limitation Act was entitled for recovery of possession. This is challenged by the appellant in the Matrimonial Appeal.