Or. 21 , rule 95 C.P.C. - Limitation Act Art.134 one year - for delivery of possession - starts from the date of confirmation of sale - high court held that Pattan Sardar Khan v. Pattan Rasool Khan3 took the view that the period of limitation must be reckoned from the date of sale certificate, it cannot be said to be correct proposition, in view of the judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra). - Dismissed the second appeal = Yakkala Mohana Rao...appellant. Shaik Hussain and another...Respondents = Published in judis.nic.in/judis_andhrafilename=10462

Or. 21 , rule 95 C.P.C. -  Limitation Act Art.134 one year - for delivery of possession - starts from the date of confirmation of sale -  high court held that Pattan Sardar Khan v. Pattan Rasool Khan3 took the view that the period of limitation must be reckoned from the date of sale
certificate, it cannot be said to be correct proposition, in view of the judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra).  - Dismissed the second appeal = 

The sale in the instant case became absolute on 21.04.2008.  The E.A. for
delivery of possession was filed in 2012.  It is clearly beyond the time
stipulated under Article 134.  The appellant sought to overcome the objection by
stating that the sale certificate was issued to him only on 03.02.2012 and
hardly within 10 days from that date, he filed the E.A.

However, the date of sale certificate becomes hardly of any significance in the
context of calculating the limitation.  The starting point is the date of
confirmation of the sale.  The lower Appellate Court has taken note of the
judgment of the Supreme Court in Pattam Khadar Khan v. Pattam Sardar Khan2.   
Though this Court in Pattan Sardar Khan v. Pattan Rasool Khan3 took the view
that the period of limitation must be reckoned from the date of sale
certificate, it cannot be said to be correct proposition, in view of the
judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra). 
 Added to 
that, in the recent past, this Court in Gampa Srinivasa Ramesh Kumar v. Punagani
Venkataramaiah4 held that the starting point for limitation is the date of
confirmation i.e. when the sale became absolute.  The lower Appellate Court has
taken correct view of the matter and this Court does not find any substantial
question of law in the second appeal.


THE HON'BLE MR JUSTICE L.NARASIMHA REDDY          

Second Appeal No.512 of 2013
       
Dated 11-10-2013

Yakkala Mohana Rao...appellant.

Shaik Hussain and another...Respondents


Counsel for appellant:  Sri N.Narasimha Rao

Counsel for Respondent No.1: Sri G.L.V.Ramana Murthy  

<GIST:

>HEAD NOTE:  

?Cases referred
1. 2004 (6) ALD 175 (FB)
2. (1996) 5 SCC 48
3  1994 (1) ALT 15
4. 2002 (4) ALT 639



THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Second Appeal No.512 of 2013

JUDGMENT:  
       
This second appeal is filed against the judgment and decree, dated 29.04.2013,
in A.S.No.5 of 2012, passed by the Court of Senior Civil Judge, Gurazala, Guntur
District.  The 1st respondent in A.S.No.5 of 2012 is the appellant herein.

The 2nd respondent herein, viz., Javvaji Ramaiah, filed O.S.No.228 of 2000,
against the 1st respondent, in the Court of Principal Junior Civil Judge,
Gurazala, for recovery of certain amount.  The suit was decreed and after the
decree became final, he filed E.P. in the Court of Principal District Judge,
Piduguralla.  An item of immovable property was got attached and was brought to
sale on 27.01.2006.  The appellant herein emerged as the highest bidder and the
sale in his favour was confirmed on 21.04.2008.

The Court of Junior Civil Judge, Piduguralla, was constituted at that stage.
Since the subject-matter of the suit and E.P. is within the jurisdiction of that
Court, the E.P. and the relevant record were sent to the Court of Junior Civil
Judge, Piduguralla.  E.P. came to be renumbered as E.P.No.8 of 2008.  The
petitioner filed E.A.No.21 of 2012 in the Court of Junior Civil Judge,
Piduguralla, under Rule 95 of Order XXI C.P.C., for delivery of possession of
the E.P. schedule property.  The 1st respondent raised an objection to the E.A.
He pleaded that the E.A. was filed beyond the period of limitation stipulated
under Article 134 of the Schedule to the Limitation Act, 1963, and is not
maintainable.  He has also taken the plea that a suit for specific performance
in relation to the said property is pending and that the 1st respondent is a
party to it.  The Executing Court overruled the objections and allowed the E.A.,
through order, dated 14.06.2012.

The 1st respondent filed a revision before this Court challenging the order in
the E.A.  This Court disposed of the revision, leaving it open to the 1st
respondent to pursue the remedy of appeal.  Accordingly, the
1st respondent filed A.S.No.5 of 2012 before the Court of Senior Civil Judge,
Gurazala, against the order, dated 14.06.2012.

The appeal was opposed by the appellant herein, by raising the plea as to
maintainability.  He pleaded that an order passed in E.A., under Rule 95 or
Order XXI is not appealable under the C.P.C.  As regards limitation, he pleaded
that on account of the constitution of a Court at Piduguralla, proceedings in
the E.P. could not be taken up promptly and the sale certificate was issued only
on 03.02.2012.  He pleaded that the E.A. was filed within one year from the date
of sale certificate.

The lower Appellate Court allowed the appeal through its judgment, dated
29.04.2013.  Hence, this Second Appeal.

Sri N.Narasimha Rao, learned counsel for the appellant, submits that A.S.No.5 of
2012 was not maintainable at all, since it was presented against an order passed
in an application filed under Rule 95 of Order XXI C.P.C.  He contends that in
the revision filed by the appellant, this Court has simply observed that the 1st
respondent can pursue the remedies in accordance with law and the said
observation cannot be taken as conferring jurisdiction upon the lower Appellate
Court.   He submits that an application for possession of the property sold in
execution of a decree can be filed within one year from the date of the sale
certificate.  It is also his contention that an application for possession
cannot be filed in the absence of a sale certificate.

Sri G.L.V.Ramana Murthy, learned counsel for the 1st respondent, on the other
hand, submits that the limitation for filing an application for delivery of
possession has to be reckoned from the date on which the sale was confirmed and
viewed from that angle, E.A. filed by the appellant, was clearly barred by
limitation.  He further submits that the objection raised by the 1st respondent
as to maintainability of the appeal, is untenable.  According to the learned
counsel, the appellant categorically pleaded that there is an objection and
resistance for delivery of possession by the 1st respondent and any adjudication
into such a claim, is referable only to Rule 97 of Order XXI C.P.C. and the
result of adjudication is certainly appealable.

Brief introduction of the subject-matter of the second appeal has already been
furnished in the preceding paragraphs.  The 2nd respondent obtained a decree
against the 1st respondent and in the course of execution of the decree, an item
of immovable property was brought to sale and the appellant became the highest
bidder in the auction.  He filed the E.A. under Rule 95 of Order XXI C.P.C., for
delivery of possession.  Challenging the same, the 1st respondent filed A.S.No.5
of 2012.  Neither in the E.A., nor in the first appeal, any oral or documentary
evidence was adduced.  The Executing Court framed only one point for its
consideration in E.A.No.21 of 2012, which reads:

"Whether the petitioner/auction purchaser is entitled for delivery and
possession of E.P. schedule property by evicting the J.Dr./2nd respondent?"

The issue was answered in favour of the appellant herein.  The lower Appellate
Court framed the following two points for its consideration in A.S.No.5 of 2012:

(i) "Whether the application under Order XXI Rule 95 C.P.C. by auction purchaser
is within time and the lower Court followed procedure contemplated under law
while delivering the property to the auction purchaser?

(ii) Whether the judgment debtor is entitled to question orders of the execution
court by way of appeal before this Court?"

Both the points were answered against the appellant herein.

Before this Court also arguments have advanced on the same points.

The aspect relating to the maintainability of appeal needs to be dealt with
first.  It is a matter of record that E.A.No.21 of 2012 was filed under Rule 95
of Order XXI C.P.C.  The prayer in that E.A. reads:


"For the reasons stated in the accompanying affidavit, the petitioner/auction
purchaser pray the Honorable Court may be pleased to order to deliver the
possession of the schedule property to him by evicting the J.Dr., in the
interest of justice."

The appellant stated that the property is in the hands of the
1st respondent and he is entitled for delivery of possession thereof.  On
receipt of notice in the E.A., the 1st respondent filed counter.  He pleaded
that the E.P. schedule property was sold by him to M/s. T.V.Srinivasa Rao and
T.V.Satish Kumar, much prior to the orders of attachment were passed in the
E.P., under an agreement of sale, and that the said purchaser, in turn, filed
O.S.No.160 of 2008 in the Court of Senior Civil Judge, Gurazala, for specific
performance.  It was also mentioned that the appellant herein figured as one of
the defendants in that suit and is contesting the same.  He pleaded that the
appellant has suppressed those facts.  The plea of limitation was also raised.
The Executing Court allowed the E.A.

If one takes into account Rule 95 of Order XXI C.P.C., there is every likelihood
of forming an opinion that an order passed in an application filed under that
provision, can at the most constitute the subject-matter of a revision and not a
regular appeal under Section 96 of C.P.C.  However, if the scheme under Order
XXI C.P.C., particularly at the stage of seeking delivery of the auction
property, is taken into account, a different view becomes possible.

Rule 95 of Order XXI C.P.C., mandates that if an auction purchaser complains
that the judgment debtor or someone on his behalf, is causing obstruction, the
Court may pass an order for delivery of possession for putting the auction
purchaser in possession on an appointed day, if necessary by removing any
person, who refuses to vacate the same.  Rule 96 thereof deals with the delivery
of possession of a property which is in occupation of a tenant.  Rule 97 cannot
be said to be an independent provision, but a stage in the exercise contemplated
under Rule 95.  Similarly, Rule 98 indicates the manner in which the questions
that arise in the matter of delivery of possession are to be adjudicated.  It
makes a specific reference to Rule 101.  It is essential to read both the
provisions together:

 "98.Orders after adjudication:-
(1)  Upon the determination of the questions referred to in Rule 101, the Court
shall, in accordance with such determination and subject to the provisions of
sub-rule (2),-
(a)  make an order allowing the application and directing that the applicant be
put into the possession of the property or dismissing the application; or
(b)  pass such other order as, in the circumstances of the case, it may deem
fit.
(2)  Where, upon such determination, the Court is satisfied that the resistance
or obstruction was occasioned without any just cause by the judgment-debtor or
by some other person at his instigation or on his behalf, or by any transferee,
where such transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into possession of the
property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order the
judgment-debtor, or any person acting at his investigation or on his behalf, to
be detained in the civil prison for a term which may extend to thirty days.

101. Question to be determined:-
All questions (including questions relating to right, title or interest in the
property) arising between the parties to a proceeding on an application under
Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of
the application, shall be determined by the Court dealing with the application,
and not by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any other law for the time
being in force, be deemed to have jurisdiction to decide such questions."

Rule 101 makes reference to applications filed under Rule 97 or 99 of Order XXI
C.P.C.  The only difference between Rules 97 and 99 is that while the former
pertains to the obstruction that may be caused by the judgment debtor, the
latter deals with the cases, where third parties complain of dispossession.
Obviously because a detailed consideration of various claims, in a manner,
comparable to Rule 58 is to be undertaken, Rule 103 mandates that the result of
the adjudication undertaken under Rules 98 and 100 shall be treated as a decree,
for the purpose of appeal etc. The provision reads:




"103. Orders to be treated as decrees:-
Where any application has been adjudicated upon under Rule 98 and Rule 100, the
order made thereon shall have the same force and be subject to the same
conditions as to an appeal or otherwise as it is were a decree."


Similar language is employed in sub-rule (4) of Rule 58 of Order XXI C.P.C. It
reads:

"Where any claim or objection has been adjudicated upon under this rule, the
order made thereon shall have the same force and be subject to the same
conditions as to appeal or otherwise as if it were a decree."

In Gurram Seetharam Reddy v. Gunti Yashoda1, a Full Bench of this Court had an
occasion to deal with the manner in which the appeals filed against the decrees
under Rule 58(4) or 100 of Order XXI C.P.C., must be dealt with.   It was held
that the remedies of appeal under Section 96 and second appeal under Section 100
C.P.C. can be availed against such orders-cum-decrees also.  The only difference
pointed out by the Court was that the Court fee must be paid as though it is a
miscellaneous appeal, and not a regular appeal.

The order passed in E.A.No.21 of 2012 is nothing, but the adjudication referable
to Rule 98 and thereby, it culminates in a decree, referable to Rule 100 of
Order XXI C.P.C.  That being the case, the appeal filed by the 1st respondent
herein was certainly maintainable.  The lower Appellate Court has taken correct
view of the matter.

Coming to the other point which touches the merits, it is not in dispute that
the sale was confirmed on 21.04.2008.  It was only in February, 2012 that the
appellant herein filed E.A. for delivery of possession.  The 1st respondent
raised an objection referable to Article 134 of the Schedule to the Limitation
Act.  It reads:

______________________________________________________________          
       Description of application       Period of          Time from which period
                                                    Limitation            begins
to run
_____________________________________________________________          
 134.   For delivery of possession      One year           When the sale becomes
          by a purchaser of
absolute.
immovable property at
a sale in execution of a
decree.
_______________________________________________________________           


The sale in the instant case became absolute on 21.04.2008.  The E.A. for
delivery of possession was filed in 2012.  It is clearly beyond the time
stipulated under Article 134.  The appellant sought to overcome the objection by
stating that the sale certificate was issued to him only on 03.02.2012 and
hardly within 10 days from that date, he filed the E.A.

However, the date of sale certificate becomes hardly of any significance in the
context of calculating the limitation.  The starting point is the date of
confirmation of the sale.  The lower Appellate Court has taken note of the
judgment of the Supreme Court in Pattam Khadar Khan v. Pattam Sardar Khan2.  
Though this Court in Pattan Sardar Khan v. Pattan Rasool Khan3 took the view
that the period of limitation must be reckoned from the date of sale
certificate, it cannot be said to be correct proposition, in view of the
judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra).
 Added to 
that, in the recent past, this Court in Gampa Srinivasa Ramesh Kumar v. Punagani
Venkataramaiah4 held that the starting point for limitation is the date of
confirmation i.e. when the sale became absolute.  The lower Appellate Court has
taken correct view of the matter and this Court does not find any substantial
question of law in the second appeal.

The Second Appeal is accordingly dismissed. There shall be no order as to costs.

The miscellaneous petition filed in this second appeal shall also stand disposed
of.

____________________  
L.NARASIMHA REDDY, J.    
Dated:11.10.2013

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