S. SIVASUBRAMANIAN Vs. N. CHINNASAMY AND SENNIAPPA GOUNDER

JUDGEMENT

(1.) THE second respondent in the above Civil Revision Petition filed a suit in O.S.No. 109 of 1997 against the petitioner herein for recovery of money and the suit was decreed. As the decree was not satisfied by the Judgement debtor the petitioner herein the second respondent herein levied execution in E.P.No. 27 of 2004 before the District Munsif Court, Dharapuram. In the Execution Proceedings, the property belonging to the judgment debtor was attached and brought for sale. In the court auction sale held on 28.10.2003, the first respondent was the successful bidder and the sale of the property was confirmed by order dated 21.09.2006. Thereafter, the court auction purchaser, namely, the first respondent herein, filed S.A. No. 17 of 2008 on 06.02.2008 under order 21 Rule 95 of the code of Civil Procedure for delivery of possession of the property purchased by him in the Court auction. The petitioner /judgment debtor contested the application inter -alia contending that the limitation prescribed for the petition for delivery of property purchased in the Court auction sale under Article 134 of the Limitation Act is only one year from the date of confirmation of the court auction sale and when admittedly the application for delivery of possession has been filed beyond the said period of one year, the application is clearly barred by time and hence the same is liable to be dismissed. However, the Court below, though noted the contention of the judgment debtor, rejected the said contention, simply by observing "In the instant case, the sale has been made absolute on 21,09.2005. Hence, no question of delay arises. Hence, the petition is allowed". Being aggrieved by the said order, the judgment debtor has filed the above Civil Revision Petition.

(2.) HEARD the learned counsel on either side. Learned counsel for the petitioner submitted that the facts are not in dispute; admittedly, the court auction sale was confirmed on 21.09.2006 and the petition for delivery under order 21 Rule 95 of the code of Civil Procedure came to be filed on 06.02.2008 and thus the petition was filed beyond the one year period of limitation prescribed under Section 134 of the Limitation Act, but this crucial aspect has been overlooked by the Court below in allowing the petition for delivery though the sale certificate was issued on 22.10.2007 the said fact has no relevance whatsoever for computing the period of limitation prescribed under Article 134 of the Limitation Act. In support of the aforesaid contentions, the learned counsel based reliance on a decision of Apex Court reported in (1996) 5 Supreme Court Cases 48 (Pattam Khader Khan v. Pattam Sardar Khan). In the said decision, in Paragraphs 11 and 12, the Apex Court has laid down as follows : -

(3.) LEARNED counsel for the petitioner also relied on a decision of the Apex Court reported in 2006 (3) CTC 180 (Balakrishnan v. Malaiyandi Konar) (SC) wherein the decision reported in (1996) 5 Supreme Court Cases 48 (referred to Supra) has been referred to and relied upon. In the said decision, in paragraph 14, the Apex Court has laid down as follows: