09 July 1996
Supreme Court


Case number: C.A. No.-004171-004171 / 1995
Diary number: 10340 / 1994






DATE OF JUDGMENT:       09/07/1996


CITATION:  1996 SCC  (5)  48        JT 1996 (6)   201  1996 SCALE  (5)63



JUDGMENT:                   THE 9TH DAY OF JULY,1996 Present:      Hon’ble Mr.Justice M.M.Punchhi      Hon’ble Mrs.Justice Sujata V.Manohar D.Prakash Reddy, Adv., R.Santhana Krishnan, D.Mahesh Babu, Advs. for K.R.Nagaraja, Adv. for the appellant S.Markandeya, Adv. for Ms.Chitra Markandeya, Adv. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: Pattam Khader Khan V. Pattam Sardar Khan & Anr.                       J U D G M E N T Punchhi,J.      Pattam Rasool,  the second  respondent herein,  filed a suit before  the Civil  Court  for  partition  and  separate possession, claiming  one sixth share in a residential house in the  town of  Nellore in  the State  of  Andhra  Pradesh. Pattam Khader  Khan, the  appellant herein,  was one  of the defendants therein. On January 7, 1977, a preliminary decree was passed  by the  court in  his  favour.  Thereafter,  the plaintiff/second  respondent   made   an   application   for appointment  of   an  Advocate  Commissioner  for  effecting partition, which  was  allowed.  The  Commissioner  becoming seisin of  the matter,  reported to the trial court that the house was  not partible and resort be had to a sale thereof, so that the sale proceeds can be apportioned amongst the co- sharers. A  public auction  was thus on permission conducted by the  Commissioner, whereby  the sale  was knocked down in favour of the first respondent, Pattam Sardar Khan; no other than the son of the plaintiff, at a price of Rs.17,000/-. No objection of  any sort  from any  quarter was raised against the sale or the conduct thereof. The sale was thus confirmed by the  court on  7.8.1984. A sale certificate was issued in



favour of the auction-purchaser about five and quarter years later on 9.11.1989. The matter in this way stood finalised.      Having obtained  the sale  certificate, an  application under Order  21 Rule  95 read  with Section 151 of the Civil Procedure Code  was moved  by  the  auction-purchaser  first respondent on  9.11.1989, seeking  delivery of possession of the auctioned  house. An objection was raised thereto by the appellant stating  that since  the application  of the first respondent was  barred by  the limitation  prescribed  under Article 134  of the  Limitation  Act,  1963,  no  order  for delivery of possession could be given in favour of the first respondent, The  executing court  of the.  District  Munsif, Nellore, on 14.12.1990 sustained the objection-regarding the bar of  limitation, which made the first respondent move the High Court  of Andhra  Pradesh at Hyderabad in revision, The High Court  on 29.11.1993  allowed the  revision petition of the first respondent, holding that April 15, 1924. The sales were confirmed by the executing court on April 22, 1924. The appeals  against   orders   dated   15,4.1924,   disallowing objections, were  preferred before  the High  Court, on July 21, 1924.  The High Court dismissed the appeals on March 17, 1927. Sales  certificates were issued by the executing Court on May. 19, 1928 and June 6, 1928 respectively. Applications for delivery  of possession under Orders 21 Rule 95 CPC were made by  the appellants  therein on  September 10, 1928. The applications were within the prescribed period of limitation if  computed   from  the   date  of  the  issuance  of  sale certificates, but beyond the prescribed period of limitation computed from the date when the sales were confirmed.      Order  21.   Rule  92   (1)  provides   that  where  no application is  made under  Rule 89,  Rule 90 or Rule 91, or where such  application is  made and  disallowed, the  Court shall make  an order  confirming the  sale and thereupon the sale shall  become absolute.  In strict conformity therewith the sales  in the  Privy Council’s  case became  absolute on April 22,  1924. All  the same  the judgment-debtors therein had a  right of  appeal under  Order 43  Rule 1  against the orders  of   the  executing  Court  dated  April  15,  1924, rejecting their  applications to set aside the sales. On the availing of  such right,  the  High  Court  re-examined  the matter and  dismissed the  appeal, confirming  the orders of the executing Court making the sales effective and absolute. On this  premise, the  Privy Council expressed itself in the following words :      "Upon consideration of the sections      and  orders   of  the  Code,  their      Lordships are  of opinion  that  in      construing the meaning of the words      "when the sale becomes absolute" in      Article 180, Limitation Act, regard      must  be  had  not  only  to    the      provisions of  Order 21 Rule 92 (1)      of  the   schedule  to   the  Civil      Procedure Code,  but  also  to  the      other material  sections and orders      of the  Code, including those which      relate to  appeals from  order made      under Order  21, Rule  92 (1).  The      result is  that where  there is  an      appeal  from   an  order   of   the      Subordinate  Judge,disallowing  the      application to  set aside the sale,      the sale  will not  become absolute      within the  meaning be Article 180,      Limitation Act,  until the disposal



    of  the  appeal,  even  though  the      Subordinate    Judge    may    have      confirmed the sale, as he was bound      to do,  when he decided to disallow      the above-mentioned application."      And further :      Their Lordships  therefore  are  of      opinion that  on the  facts of this      case  the   sales  did  not  become      absolute  within   the  meaning  of      Article 180,  Limitation Act, until      17th March    1927,  and  that  the      applications for  possession of the      properties purchased at the auction      sales  were   not  barred   by  the      Limitation Act." To recall,  March 17,1927,  the day from which the period of limitation was viewed to start, was the day when the appeals were dismissed  by the  High Court  and not the day on which the sale  certificates were  issued by  the executing Court. The High  Court in  the instant  case thus missed the point, The Privy  Council had  nowhere ruled  that  the  period  of limitation under  Article 180  would run  from the  date  of issuance of  the  sale  certificates.  The  High  Court  was therefore in error.      The view of the Division Bench of the Madras High Court in Kamakshi  Ammal and  Anr. Vs. Arukkani Ammal and Anr. AIR 1957 Madras  440, following  the Privy  Council decision,had also mistakenly  been taken  by the High Court to have taken the view it has taken, as also in some other cases. Far from it. Rather  the ,Madras  High Court  had clearly opined that even  though   the  third  Column  of  Article  180  of  the Limitation Act,  1908 refers  to the date of commencement of the period  of limitation  as the date when the sale becomes absolute, that  clause  must  be  read  not  only  with  the provisions of  Order 21  Rule 92  (1) CPC, but also with the other, material sections and orders of the Court is had been authoritatively enunciated  by their  Lordships of the Privy Council in  Chandra Mani Saha & Ors. Vs. Anarjan Bibi & Ors. AIR 1934 Privy Council 134.      This Court in Rama Krishna Rao Vs. Challayamma AIR 1953 SC 425,  has also  followed and approved Chandra Mani Saha’s case of the Privy Council, ruling as follows:      "Where  a   Subordinate  Judge  has      disallowed  an   application  under      Order 21,  Rule 90, to set aside an      sale in  execution, and has made an      order under  rule 92 (1) confirming      the  sale,   and  an   appeal  from      disallowance has  been dismissed by      the High  Court, the  three  years’      period  provided   by  the   Indian      Limitation Act,  1908, Schedule  I,      Article  180,  for  an  application      under. Order  21, Rule  95, by  the      purchaser    for     delivery    of      possession runs  from the  date  of      the order on appeal, the High Court      having  under  the  Code  of  Civil      Procedure, 1908,the  same powers as      the  Subordinate  Judge,  the  time      when the  sale  becomes  absolute’,      for the  purpose of  Article 180 is      when the High Court disposes of the      appeal."



    And hence,not  from the  date of  issuance of  the sate certificate, despite  the suggestive  language of  Order  21 Rule 95.  Thus, where there is no application to set aside a sale, as  in the  instant case, the order of confirmation of sale in itself is the final step in making the sale absolute and the matter is thus put to rest.      This Court  again in  Ganpat Singh  (Dead) by  Lrs. Vs. Kailash Shankar  & Ors.  -(1987) 3  SCC 146  has noticed the state of law as laid down in Chanda Mani Saha’s case, and as followed by  the Madras High Court in Kamakshi Ammal’s case. The matter in that regard thus stands crystalized. There is no stray  thought to  the contrary in any of the decision of various High  Courts cited on behalf of the appellant before us.      Now to  the spirit  of it. A Court sale is a compulsory sale, conducted  by or  under orders of the Court. The title to  the  property  sold  does  not  vest  in  the  purchaser immediately on  the sale  thereof unlike  in the  case of  a private sale.  The law  requires that  it  does  not  become absolute until sometime after the sale; a period of at least 30 days  must expire  from the  date of sale before the sale can become  absolute. In that while, the sale is susceptible of being set aside at the instance of the judgment-debtor on the ground  of irregularity in publication or conduct of the sale or  on defalcation  as regards deposit of money etc. as envisaged in  Rules 89  and 90  of Order  21. Where  no such application is  made, as  is the  case here,  the Court  was required, as  indeed it did, to make an order,confirming the sale and it is upon such confirmation that the sale becomes, and became, absolute in terms of Order 21 Rule 92. After the sale had  become absolute,  a certificate  is required to be granted by the Court to purchaser, termed as ’certificate of sale’ in  Order 21  Rule 94. Such certificate bears the date as on  which the  sale became  absolute. It  is on  the sale becoming absolute  that  the  property  sold  vests  in  the purchaser. The  vesting of  the property  is  thus  made  to relate back to the date of sale as required under Section 65 CPC.      Order 21  Rule  95  providing  for  the  procedure  for delivery of  property in  occupation of  the judgment-debtor etc, requires an application being made by the purchaser for delivery of  possession of  property in  respect of  which a certificate has  been granted  under Rule  94 of  Order  21. There is  nothing in  Rule is  to make  it incumbent for the purchaser  to   file  the   certificate   along   with   the application. On the sale becoming absolute, it is obligatory on the Court though; to issue the certificate. That may, for any reason  get delayed.  Whether there  be failure to issue the certificate  or dely of action on behalf of the Court or the inaction  of  the  purchaser  in  completing  the  legal requirements and  formalities, are  factors  which  have  no bearing on  the limitation  prescribed for  the  application under Article  134. the  purchaser cannot seek to extend the limitation on  the ground  that the certificate has not been issued. It  is  true  though  that  order  for  delivery  of possession cannot  be passed  unless sale certificate stands issued. It  is manifest  therefore that  the issue  of  sale certificate is  not "sine qua non" of the application, since both these  matters are  with the  same Court.  The starting point of  limitation for the application being the date when the sale  becomes absolute  i e.  the date  on  which  title passed,  the   evidence  of  title,  in  the  form  of  sale certificate, due  from the  Court, could  always be supplied later to  the Court  to satisfy the requirements of Order 21 Rule 95.  See in  this regard Babulal Vs. Annapurnabai - AIR



1953 Nagpur  215, which  is a  pointer. It therefore becomes clear that  the title of the Court auction-purchaser becomes complete on  the confirmation  of the  sale under  Order 21, Rule 92,  and by virtue of the thrust of Section 65 CPC, the property vests  in the  purchaser from the date of sale; the certificate of  sale, by  itself, not creating any title but merely evidence  thereof. The  sale certificate  rather is a formal  acknowledgement  of  a  fact  already  accomplished, stating as  to what  stood sold.  Such act  of the  Court is prestinely a  ministerial one and not judicial. It is in the nature of a formalisation of the obvious.      Such being  the state of law on the subject, we fail to see how  the High  Court could  have come  to the conclusion that even  though the  Wale becomes absolute on confirmation under Order  21 Rule  92 CPC  effectively passing title, the same  can   only  be  complete  when  evidenced  by  a  sale certificate issued  under Order  21 Rule 94, and that unless the sale  certificate is issued, limitation cannot start for the purpose  of an  application under  Order 21 Rule 95 CPC, vis-a-vis, Article 134 of the Limitation Act, 1963. The High Court, in our view erred in holding that it is only from the date when  a sale certificate is issued, that the limitation starts running.  Such view  of the High Court would not only cause violence to the clear provisions of Article 134 of the Limitation Act  but have  the effect  of unsettling  the law already settled.      There can  be a variety of factors conceivable by which delay can  be caused  in issuing  the sale  certificate. The period of  one year limitation, now prescribed under Article 134 of  the Limitation  Act 1973, in substitution of a three year period  prescribed under  Article  180  of  the  Indian Limitation Act  of 1908.  is reflective  of the  legislative policy of  finalizing proceedings in execution as quickly as possible by  providing quick  forum to the auction-purchaser to ask  delivery of  possession of  the  property  purchased within that  period from  the  date  of  the  sale  becoming absolute, rather  than from the date of issuance of the sale certificate. On  his failure  to avail such quick remedy the law relegates  him to the remedy of a suit for possession in a regular way.      Thus, for  the aforesaid reasons, we have no hesitation to allow  this appeal,  set aside the impugned orders of the High Court,  restoring that  of the  First Court,  which  we hereby do,  relegating the first respondent to the remedy of a suit, should he be so advised, but without any order as to costs.