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Mallika v. Ayyappy Karunakaran And Others

Kerala High Court

Apr 10, 1981

Judgment

Subsequent
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Factual and Procedural Background

The property in dispute was purchased in a court auction on 30-03-1968 by the 1st respondent (described as the assignee-decree-holder-auction purchaser in E.A. No. 146 of 1969, in E.P. No. 158 of 1964, in O.S. No. 551 of 1958 on the file of the Munsiff of Ernakulam). The sale was confirmed on 09-07-1968 and a sale sannad was issued. The auction purchaser then filed E.A. No. 1509 of 1968 seeking delivery of the sannad property before the Munsiff of Ernakulam.

On notice of that application, respondents 3 to 6 (judgment-debtors numbered 2, 3, 4 and 6) filed E.A. No. 149 of 1969 challenging the sale. The execution court allowed that petition and set aside the sale on 06-02-1970, holding the sale to be ab initio void for want of notice of sale proclamation; the delivery application (E.A. No. 1509 of 1968) was dismissed on that basis.

The auction purchaser appealed (initially A.S. No. 123 of 1970 before the District Court, Ernakulam, later transferred and renumbered as A.S. No. 294 of 1972 before the Subordinate Court, Ernakulam). The appellate court allowed the appeal and confirmed the sale. The opinion records two dates in relation to the appellate confirmation: paragraph 1 records the appellate confirmation as being on 18-12-1976, while later paragraphs refer to the confirming decision as having been made on 18-02-1976. The auction purchaser subsequently filed E.A. No. 998 of 1977 (purportedly under Sections 47 and 151 of the Code of Civil Procedure) on 29-10-1977 seeking revival of the earlier delivery application E.A. No. 1509 of 1968 which had been dismissed on 06-02-1970.

The 5th judgment-debtor opposed E.A. No. 998 of 1977 primarily on the ground that it was barred by limitation. The execution court (the court below) rejected relevant contentions and allowed E.A. No. 998 of 1977 on 04-12-1979. The 5th judgment-debtor preferred the present civil revision against that order.

Legal Issues Presented

Whether the auction purchaser was entitled to delivery of the property on the basis of E.A. No. 998 of 1977, an application for revival of the earlier delivery application E.A. No. 1509 of 1968 that had been dismissed on 06-02-1970.
Whether the auction purchaser's right to seek delivery was barred by limitation under Article 134 of the Limitation Act, 1963, because no application for delivery was filed within one year from the date on which the sale became absolute (the opinion identifies the controlling date for limitation as the date on which the appellate court finally disposed of the appeal confirming the sale).

Arguments of the Parties

Revision Petitioner (5th Judgment-Debtor) - Principal Contentions

The revival application (E.A. No. 998 of 1977) is barred by limitation under Article 134 of the Limitation Act, 1963 because no application for delivery was filed within one year from the date when the sale became absolute (the revision petitioner identifies the relevant date as the judgment in appeal which confirmed the sale).

Auction Purchaser (1st Respondent) - Principal Contentions

The auction purchaser contended that when the subordinate appellate judge said "the sale is confirmed" the intention was to restore the position of the execution court proceedings to what it was before the order setting aside the sale. On that basis the delivery application E.A. No. 1509 of 1968, which was wrongly dismissed when the sale was declared void, would be revived; hence the question of limitation under Article 134 would not arise.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandramani Saha v. Anarjan Bibi, AIR 1934 PC 134	Authority for the proposition that where an appeal is preferred under O.21, R.90, finality as to when a sale becomes absolute is from the date the appellate court disposes of the appeal; the limitation period runs from the appellate decision.	The court relied on the head note of this Privy Council case (and its approval by the Supreme Court) to support the general proposition that there is no finality until the appellate court finally determines the matter; hence the date when the sale becomes absolute for limitation purposes is the date of the appellate disposal.
Rama Krishna Rao v. Challayamma, AIR 1953 SC 425	Supreme Court approval of the Privy Council principle quoted above (on when "sale becomes absolute" for limitation purposes).	The court cited the Supreme Court decision as approving the Privy Council authority, using it to reinforce the principle that the time when a sale becomes absolute (for limitation) is when the appellate court disposes of the appeal.
Shama Purshad v. Hurro Purshad ((1863-66) 10 Moo Ind App 203)	Principle that orders and decrees subordinate and dependent upon earlier orders remain in force only as long as the orders on which they depend are not reversed; when the earlier orders are reversed, the dependent orders cease to have effect.	The court invoked this principle to support the proposition that a confirmation which depended on an earlier order that was set aside could not continue to have effect once the earlier order was reversed or restored to file.
State Bank of Travancore v. Mastan Kunju (Division Bench), AIR 1980 Ker 236	Held that once an application to set aside a sale is restored, an earlier confirmation stands automatically vacated; and that when an application restored to file is ultimately dismissed a fresh order of confirmation must be passed.	The court relied on this Division Bench ruling to support its conclusion that an earlier, inchoate confirmation (made before final disposal on appeal) cannot be treated as final and that delivery must be sought only after the sale becomes absolute on final disposal.
Kunjukrishnan v. Viswanathan, AIR 1964 Ker 314	Earlier single-Bench ruling which was overruled by the Division Bench in State Bank of Travancore v. Mastan Kunju.	Mentioned as a single-Bench precedent that was overruled; the court relied on the Division Bench's overruling rather than this earlier authority.
Varadarajan v. Venkatapathi, AIR 1953 Mad 587	Authority that when an application to set aside a sale is restored and ultimately dismissed, a fresh order of confirmation or sale must be passed.	The court cited this decision as one of the precedents supporting the view that a fresh confirmation is required after the appellate disposal if the previous confirmation had been rendered inoperative by the setting aside of the sale.
Bishun Prasad v. Central Bank of India, AIR 1980 Pat 22	Held that a sale within the meaning of Article 134 of the Limitation Act becomes absolute after the suit under O.21 (or analogous proceedings) is finally disposed of.	The court cited this Patna High Court ruling to support the proposition that the sale becomes absolute only after final disposal of the proceedings and therefore limitation runs from that final disposal.

Court's Reasoning and Analysis

The court's analysis proceeds from the central question of determining the precise date on which the sale "became absolute" for the purpose of limitation under Article 134 of the Limitation Act, 1963. The court framed the issue as whether the sale became absolute (a) on the initial confirmation of sale and issuance of sale sannad on 09-07-1968, (b) when the execution court set the sale aside and dismissed the delivery application on 06-02-1970, or (c) only on final disposal of the appeal which in the opinion is recorded as having confirmed the sale (the opinion contains references to the appellate confirmation as on 18-12-1976 in one paragraph and on 18-02-1976 in later paragraphs; the court's limitation analysis uses the appellate disposal date as the operative date).

Key steps in the court's reasoning:

The court observed that Order 21, Rule 92(1) C.P.C. states that where no application is made under Rules 89, 90 or 91, or where such applications are made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute. However, the present case involved an application under Rule 90 (E.A. No. 149 of 1969) made by the judgment-debtors and allowed by the execution court, which resulted in the sale being set aside and the delivery application being dismissed. Therefore this was not a straightforward case of Rule 92(1) operating in the ordinary manner where no challenge was pending.
The court then considered the effect of the appellate court's language that "the sale is confirmed." The auction purchaser's counsel argued that this phrase merely restored the status of proceedings in the execution court and therefore the earlier delivery application should revive. The court rejected this reading, explaining that the appellate judge's statement cannot be read as confirming a confirmation that had become inoperative on account of the setting aside of the sale and consequent dismissal of the delivery application. The court found that the appellate judge had focused on whether the sale was ab initio void, not on restoring a prior confirmation that had been rendered inoperative.
The court relied on Rule 94 of Order 21 C.P.C., which contemplates a sale certificate issued only after the sale becomes absolute and that such certificate bears the date on which the sale became absolute. From this the court reasoned there can only be one sale certificate issued when the sale actually becomes absolute.
The court then surveyed authority to establish the broader legal principle: where an application under Order 21 (Rules 89, 90 or 91) is taken in appeal, generally speaking, there is no finality until the appellate court finally determines the matter. The court quoted the head note of Chandramani Saha v. Anarjan Bibi (approved by the Supreme Court in Rama Krishna Rao v. Challayamma) to the effect that the time when the sale becomes absolute (for limitation purposes) is when the High Court or appellate authority disposes of the appeal.
The court also relied on older principles (Shama Purshad v. Hurro Purshad) that dependent orders cannot survive when the primary orders on which they depend are reversed, and on subsequent High Court decisions (State Bank of Travancore v. Mastan Kunju and Varadarajan v. Venkatapathi) establishing that where an application to set aside is restored and ultimately dismissed a fresh confirmation must be passed and that an earlier confirmation, rendered inoperative by restoration, stands vacated.
On the basis of these principles, the court concluded that any confirmation made prior to final disposal of the appeal was inchoate and could not supply the basis for a delivery application after the appellate process concluded. Therefore, delivery of possession could be sought only on the basis of the confirmation that arose when the appellate court allowed the appeal (the court treats the appellate disposal date as the operative date for the commencement of limitation). If the auction purchaser failed to make a delivery application within one year from that date (as required by Article 134 of the Limitation Act, 1963), he could not avoid the limitation bar by attempting to revive the earlier dismissed delivery application which had been based on the inchoate confirmation.

The court thus applied statutory provisions (Order 21 Rules and Article 134) in conjunction with the cited precedents to hold that the revival application was not a valid method to overcome the limitation bar.

Holding and Implications

Core Ruling: Revision allowed; the order of the court below is set aside; and the auction purchaser's application E.A. No. 998 of 1977 shall stand dismissed.

Consequences and implications:

The immediate effect is that the execution court's order allowing E.A. No. 998 of 1977 is vacated and the revival application fails; the auction purchaser cannot obtain delivery of possession on the basis of the revival application.
The court directed that, in the peculiar circumstances of the case, the parties shall bear their respective costs.
The opinion applies established principles about when a sale becomes absolute (i.e., upon final appellate disposal where an application under Order 21 is involved) and enforces the operation of Article 134 of the Limitation Act, 1963. The court did not purport to create a new principle of law but applied and reconciled existing authorities to the facts at hand. Therefore the direct effect is on the parties in this case; no novel precedent beyond the application of cited authority is stated in the opinion.

Revision allowed.

Show all summary ...

1. The short facts of the case as could be gathered from the statement of facts contained in the memorandum of the civil revision petition are as follows:— The property in question was purchased in court auction on 30-3-1968 by the 1st respondent (the assignee-decree-holder-auction purchaser in E.A No. 146 of 1969, in E.P No. 158 of 1964, in O.S No. 551 of 1958 on the file of the Munsiff of Emakulam). After the confirmation of the sale on 9-7-1968 and the issue of the sale sannad the auction purchaser filed E.A No. 1509 of 1968 for delivery of the sannad property before the Munsiff of Emakulam. On receipt of notice of the application respondents 3 to 6 herein, who are judgment-debtors 2, 3, 4 and 6, filed E.A No. 149 of 1969 challenging the validity of the sale, That petition was allowed and the sale set aside by the Court on 6-2-1970 holding that the sale was ab initio void for want of notice of sale proclamation. The auction purchaser took up the matter in appeal in A.S No. 123 of 1970 before the District Court, Ernakulam, which was later on transferred to the Sub. Court, Ernakulam, where it was renumbered as A.S No. 294 of 1972. The appellate Court allowed the appeal and confirmed the sale on 18-12-1976. The application for delivery (E.A No. 1509 of 1968) filed by the auction purchaser before the execution Court was dismissed when E.A No. 149 of 1969 was allowed on 6-2-1970 stating:

“Since the sale has been declared ab initio void this application is dismissed.” When, as noticed earlier, the appellate Court subsequently set aside the order of the execution Court setting aside the sale, and confirmed the sale, the auction purchaser on 29-10-1977 filed E.A No. 998 of 1977 purported to be under Sections 47 and 151 of the Code of Civil Procedure for the revival of E.A No. 1509 of 1968, the application for delivery which was dismissed on 6-2-1970. The 5th judgment-debtor opposed the application; her main objection to that application was that it was barred by limitation. The court below, however, rejecting the contentions of the 4th judgment-debtor, allowed E.A No. 998 of 1977 on 4-12-1979. It is, aggrieved by this order passed by the execution Court, that this revision has been preferred by the 5th judgment-debtor.

2. The question that falls for decision is whether the auction purchaser is entitled to delivery of the property on the basis of the application E.A No. 998 of 1977 for the revival of the delivery application E.A No. 1509 of 1968 dismissed on 6-2-1970 by the execution Court. It is the contention of the revision petitioner that no application for delivery having been filed within one year from the date of the judgment, namely, 18-2-1976, in A.S No. 294 of 1972 by which alone the sale was confirmed and made absolute, the auction purchaser had forfeited the right to have delivery of the property by virtue of the provisions contained in Art. 134 of the Limitation Act, 1963.

3. The decision on the question of limitation under Article 134 of the Limitation Act would depend upon the date on which the sale became absolute. Order 21, Rule 92(1) of the Code of Civil Procedure lays down:

“Sale when to become absolute or be set aside.— (1) 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.” (proviso omitted)

This is not a case where no application under Rule 89, Rule 90 or Rule 91 was made or an application made under any one of those rules was disallowed inasmuch as E.A No. 149 of 1969 filed by the judgment-debtors under Section 47 and Rule 90 C.P.C was allowed and the sale was set aside; and with that the confirmation granted and the sannad issued also stood canceled when the very sale was set aside and the delivery application itself was dismissed.

4. What remains to be considered is the effect of the judgment of the appellate Court which in its penultimate paragraph stated as follows:—

“The order passed by the lower Court setting aside the sale is really erroneous and therefore the said order is set aside and the sale is confirmed.”

The argument of the counsel for the auction purchaser is that when the learned Subordinate Judge said “the sale is confirmed”, she only meant that the position of the proceedings in the execution court before it passed the order on E.A No. 149 of 1969 was restored, and in that view the application E.A No. 1509 of 1968 wrongly dismissed would revive, and therefore the question of limitation under Article 134 could not arise. It is difficult to read into the judgment of the learned Subordinate Judge the idea sought to be introduced by the counsel for the auction purchaser. When the learned Subordinate Judge said “the sale is confirmed”, it does not imply confirmation of a confirmation already granted, but became inoperative on account of the setting aside of the sale, and consequent dismissal, of the delivery application itself. The effect of the confirmation ordered prior to the setting aside of the sale does not appear to have entered the mind of the learned Subordinate Judge, as we find only a passing reference to the confirmation ordered by the execution court in her judgment. The only question that received the attention of the learned Subordinate Judge was whether the sale was ab initio void as contended for by the judgment-debtors and as held by the execution court.

5. Under Rule 94 of Order 21 C.P.C—

“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.”

The sale certificate contemplated under Rule 94 could be granted only after the sale becomes absolute such certificate has to bear date, the day on which the sale has become absolute. There could, therefore, be only one sale certificate as contemplated under Rule 94 of Order 21, and that is the one to be issued after the sale becomes absolute.

6. When did the sale become absolute in this case? Was it when the sale was confirmed on 9-7-1968, before the passing of the order on E.A No. 149 of 1969 filed by the judgment-debtors for setting aside the sale and dismissing the application for delivery on 6-2-1970, or was it when the appellate Court allowed the appeal A.S No. 294 of 1972, set aside the order on E.A No. 149 of 1969 and confirmed the sale on 18-2-1976? It is the well recognised principle that where an appeal has been preferred against an order on an application under Order 21, Rule 90 C.P.C, generally speaking, there is no finality until the litigation is finally determined by the appellate Court. The head note of the Privy Council case in Chandramani Saha v. Anarjan Bibi (AIR 1934 PC 134), referred to with approval by the Supreme Court in Rama Krishna Rao v. Challayamma (AIR 1953 SC 425), extracted below would suffice if any citation in support of this proposition is needed (at p. 428):—

“Where a Subordinate Judge has disallowed an application under O. 21, R. 90, to set aside a 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 O. 21, R. 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.”

7. It was held by the Privy Council in Shama Purshad v. Hurro Purshad, (1863-66) 10 Moo Ind App 203) that orders and decrees which were subordinate and dependent upon earlier orders and decrees could remain in force only as long as the order or decree on which they were dependent was not reversed or suspended. When the decrees and judgments on which they depended were reversed, they could not continue to remain in force. On this principle a Division Bench of this Court in State Bank of Travancore v. Mastan Kunju (1980 Ker LT 687); (AIR 1980 Ker 236), overruling the ruling of a single Bench of this Court in Kunjukrishnan v. Viswanathan (1964 Ker LT 449) : (AIR 1964 Ker 314) held that once the application to set aside the sale was restored, the confirmation made earlier would stand automatically vacated. The Division Bench in the same case, following the decision of the Madras High Court in Varadarajan v. Venkatapathi (AIR 1953 Mad 587), also held that when an application to set aside a sale was restored to file by the decision in appeal and that application was ultimately dismissed, a fresh order of confirmation or sale had to be passed. The Patna High Court in Bishun Prasad v. Central Bank of India (AIR 1980 Pat 22) has held that (at page 24):—

“The suit under O. XXI, R. 63 is a suit under the Civil P.C and as such I am of the view that the sale within the meaning of Article 134 of the Limitation Act becomes absolute after the suit under O. XXI, R. 63, C.P.C was finally disposed of.”

8. The legal position that emerges from the foregoing discussion is that where an application to set aside a sale is filed under Rule 89 or Rule 90 or Rule 91 of Order 21 C.P.C, and the decision thereon is carried in appeal, generally speaking, there was no finality in regard to the same until the litigation was finally determined by the appellate court. Any order of confirmation passed before the sale became absolute on the termination of the proceedings before the appellate or the revisional authority, would only be inchoate in nature and no finality could be attached to it. The application for delivery of possession of the property in the occupancy of the judgment-debtor, or of some person on his behalf, has to be made in pursuance of the sale certificate issued under Rule 94 of Order 21 when the sale becomes absolute on the termination of the proceedings as aforesaid. In this view the auction purchaser (1st respondent herein) could seek delivery of possession of the property of the judgment-debtors only on the basis of the confirmation of the sale on the allowing of the appeal, A.S No. 294 of 1972 on 18-2-1976, and if he did not care to file an application for delivery within one year from that date as required under Article 134 of the Limitation Act, 1963, he could not be permitted to get over the plea of limitation by resorting to the filing of an application for revival of the delivery application E.A No. 1509 of 1968 filed on the basis of the inchoate confirmation granted before the proceedings terminated and the sale became absolute.

The result, therefore, is that the revision is allowed; the order of the court below is set aside; and the auction purchaser's (1st respondent's) application E.A No. 998 of 1977 in E.P No. 158 of 1964 in O.S No. 551 of 1958 on the file of the Munsiff of Emakulam shall stand dismissed. In the peculiar circumstances of the case I would direct the parties to bear their respective costs.