YERRA SANYASI NAIDU Vs. CHOPPA AKKULU

JUDGEMENT

(1.) A short point is involved in this revision petition. The petitioner was an auction purchaser being the highest bidder of sale of properties, which were brought on sale by the District Co-operative Central Bank, Visakhapatnam to which the properties had been mortgaged against a loan borrowed by one Budi Suryanarayana and his father Satyanarayana. After the properties were auctioned, the petitioner was able to take possession of some of the properties and some of the properties he could not take possession of because it was resisted by the respondent. In between the respondent filed a suit in which he obtained a stay. The petitioner filed an application under sub-rule (15) of Rule 52 of the A.P. Co-operative Societies Rules, 1964 before the trial Court seeking possession of the schedule property which was resisted by the respondent on merits as well as on the ground that the application was time barred. On merits the trial Court agreed with the petitioner, but on the question of limitation it agreed with the respondent and found that the application was time barred, therefore dismissed the application. Hence the revision.

(2.) Now the only question before this Court is whether the application under sub-rule (15) of Rule 52 of the A.P. Co-operative Societies Rules was made within time or not. The sale was held on 27-7-1996, it was confirmed on 18-9-1996 and sale certificate was issued on 2-6-1997. It is contended by the learned counsel for the respondent that the matter would be governed for the purposes of limitation by Article 134 of the Limitation Act which prescribes a period of one year for seeking the remedy of delivery of possession from the date the sale was confirmed and since he failed to come to the Court within the prescribed one year, the application was not maintainable. He relied on a judgment of this Court reported in Gampa Srinivasa Ramesh Kumar v. Punagani Venkataramaiah to show that Article 134 of the Limitation Act would apply and the application of the Article 134 would mean that the application had to be made within one year. On the other hand, the learned counsel for the petitioner contended that Article 134 would apply only when an order was sought against the original borrower, but not against a third party. He also relied on various judgments including the judgments reported in Kerala S.E. Board v. T.P. Kimhaliumma and Deep Chand v. Mohan Lal. So it was accepted that the sale becomes absolute when it was confirmed. Therefore it is immaterial when the sale certificate was issued. Now Article 134 of the Limitation Act reads, 134 For delivery of possession by a purchaser of immovable property at a sale in execution of decree One year When the sale becomes absolute. This article applies when a person seeks a remedy under Rule 95 of Order 21 of the Code of Civil Procedure (for short "the Code"). Therefore it will be necessary to compare Rule 95 of Order 21 of the Code with Rule 52 (15) of the A.P. Co-operative Societies Rules. Rule 94 of Order 21 of the Code lays down that where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute. On the other hand, Rule 95 of Order 21 of the Code lays down that on application by the purchaser who had been granted a certificate under Rule 94 the Court could order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and, if need be, by removing any person who refuses to vacate the same. Now Rule 52 (14) of the A.P. Co-operative Societies Rules lays down,

(3.) Rule 52 (14) of the Co-operative Rules is not in pari materia with Rule 94 of Order 21 of the Code. Under Rule 94 of Order 21 of the Code the Court has only to grant a certificate, but it has not to examine whether the sale has become absolute or not, that is a stage prior to grant of certificate in terms of other rules in Order 21 of the Code, whereas in Rule 52 (14) of the A.P. Co-operative Societies Rules confirmation of sale and grant of certificate are interconnected. Once the sale is confirmed in terms of sub-rule (14)(i), (ii) and (iii) of Rule 52 of the A.P. Co-operative Societies Rules, a certificate has to be issued under sub-rule (14)(v). Similarly a different procedure has been given under Rule 95 of Order 21 of the Code for delivery of possession where sale has to be confirmed in pursuance of a decree. Therefore Rule 95 of Order 21 of the Code does not amount to execution of decree, but only handing over of possession for which a sale certificate has to be issued under Rule 94 of Order 21 of the Code. Sub-rule (15) of Rule 52 of the A.P. Co-operative Societies Rules was altogether differently drafted. Therefore, it will be necessary to reproduce sub-rule (15) of Rule 52.