JOSEPH @ THAMPIKUNJU Vs. RETNAMMA

JUDGEMENT

(1.) The question involved in this Regular Second Appeal is whether an auction purchaser who failed to take delivery of the property within one year as provided under Article 134 of the Limitation Act,1963 is entitled to file a suit for recovery of possession on strength of his title as per Sale Certificate issued by the Execution Court.

(2.) It is a settled law that a Second Appeal under Sec. 100 of the Code of Civil Procedure shall not be admitted when the Substantial Question of Law raised therein is a settled question of law. The very same question which is involved in this Regular Second Appeal was considered by the Full Bench of this Court in Danish Varghese v. Jancy Danish [2021 (1) KHC 1]. Even though the very same question was considered and answered by the Full Bench of the Court, both sides rely on the findings of the Full Bench in support of their contention. The contention of the appellants/contesting defendants is that the Full Bench has laid down the law that a fresh suit for recovery of possession at the instance of an auction purchaser who failed to obtain delivery within the limitation period under Article 134 of the Limitation Act is barred under Sec. 47 CPC. On the other hand, the contention of the contesting respondents/legal heirs of the plaintiff is that a fresh suit for recovery of possession under Article 65 of the Limitation Act is not barred under Sec. 47 even if the auction purchaser failed to take delivery within one year as provided under Article 134.

(3.) The question was referred to the Full Bench by the Division Bench of this Court in view of the apparently conflicting views rendered in different decisions of the Hon'ble Supreme Court and this Court. The Full Bench of this Court considered relevant decisions on the point and answered the reference. Both sides cited the decisions considered by the Full Bench to substantiate their interpretation of the Full Bench. Since the Full Bench has considered the relevant decisions and answered the reference declaring the law on the point, the task of this Court is to ascertain what exactly is the dictum laid down by the Full Bench.