FRANCIS Vs. ALEX JOSEPH

JUDGEMENT

(1.) This Revision Petition is filed against an order dismissing the unnumbered Execution Petition of 2013, filed by the revision petitioner, for delivery of the property, purchased in court auction, before the Additional Sub Court, North Paravur. The Original Suit was one filed for specific performance of a contract and the suit was decreed in part, allowing him to recover Rs. 5,50,000.00 with interest at the rate of 6% per annum, from the date of suit till realisation from the respondent, by selling the plaint schedule property. Since the respondent did not pay the amount, the revision petitioner filed E.P. No. 37/2007 to execute the above said decree and the property of the respondent was put in auction. The revision petitioner purchased the property in the court auction held on 26.7.2010 and the sale was confirmed on 30.9.2010. The petitioner produced the stamp paper for sale on 1.10.2010. But, thereafter, a third party filed E.A. No. 486/2011 in E.P. No. 37/2007, as claim petition and it was dismissed on 28.05.2013 only. Consequently, the sale certificate was issued to the revision petitioner on 29.6.2013. The revision petitioner filed Execution Petition for delivery of the property on 8.7.2013. Even though the said petition was filed as E.P., the court below considered the same as an application under R. 95 of O.XXI of the Code of Civil Procedure i.e., application for delivery of property. The said application was not numbered on the ground that it was time barred. This is the grievance projected in this Civil Revision Petition and the petitioner sought for a direction to the court below to number the Execution Petition and dispose the same in accordance with law.

(2.) Going by the impugned order, passed by the court below, it is seen that the court below has not numbered the Execution Petition on the reason that the Execution Petition itself is a time barred one. As rightly submitted by the petitioner, even though the revision petitioner filed Execution Petition, the court below considered the same as an application under R.95 of O.21 of the C.P.C., seeking delivery of the property. In view of the fact that the delivery was sought for in the application, the court below is justified in considering the said application as an application under R.95 of O.21 of the C.P.C. If it is an order, on an application under R.95 of O.21 of the C.P.C., the question of limitation would come into play at first.

(3.) The question to be considered is, whether the non-issuance of sale certificate or pendency of claim petition under R.58 of O.21 of the Code of Civil Procedure, would defer the period of limitation, provided under Art. 134 of the Limitation Act for seeking delivery of possession by a purchaser of immovable property at a sale in execution of a decree.