PATTAN SARDAR KHAN Vs. PATTAN RASOOL KHAN

JUDGEMENT

(1.) This Civil Revision Petition arises out of execution proceedings.

(2.) At issue is the proposition as to whether time for filing application for possession under Order 21 Rule 95 C.P.C. by the auction purchaser runs either from the date of confirmation of sale or from the date of issuance of the sale certificate.

(3.) In a suit for partition filed by one of the co-owners in O.S.No. 894 of 1975 on the file of the 1st Additional District Munsif, Nellore, it was held that even though the plaintiff was entitled for a share in the suit schedule property comprising a residential house at Nellore, having regard to the nature of the property, the same was not partible and was liable to be sold and the sale proceeds were to be apportioned. The said judgment and decree had become final. Letter on, consequential proceedings were initiated for putting the property to sale and in the sale, the revision petitioner (the plaintiff) was the highest bidder and the sale was knocked down in his favour. Neither any objection to the said sale nor any petition to set aside the sale was filed. The sale, thus, was confirmed. After confirmation of the sale, a sale certificate was issued. While the sale was confirmed on 7-8-1984, the sale certificate was issued on 9-11-1989. From the above, it is evident that there was a delay of about 5 Years and 3 months in issuance of the sale certificate after the confirmation of the sale. The cause for the said delay was the process of adjudication as to whether it was a sale in common parlance or an auction sale through the process of Court and as to whether a regular sale deed has to be executed or a sale certificate should be issued and whether any poundage was to be imposed. Ultimately, it was held to be an auction sale and that a sale certificate has to be issued and that poundage has to be paid. After the plaintiff- revision petitioner has deposited the amount towards the poundage, the sale certificate was issued to him in November, 1989. During the month of December, 1989, the revision petitioner, annexing the copy of the sale certificate, has filed an application E.A.No. 41 of 1990 as contemplated under Order 21, Rule 95 read with Section 151 CPC for delivery of possession of the property purchased by him. As a counter blast, the judgment dated No. 3 had filed E.A.No. 160 of 1990 to dismiss the above E.A. filed by the revision petitioner on the ground that the application filed by the petitioner was time barred. The contention of the 3rd judgment debtor was that the limitation for filing an application for delivery of possession under Order 21 Rule 95 CPC is one year and that the said one year has to be reckoned from the date when the sale was made absolute and that under Order 21 Rule 94 CPC the sale in question became absolute on 7-8-1984 when the same was confirmed and as such, under Article 134 of Indian Limitation Act, the application filed by the revision petitioner stood time barred and was not maintainable.