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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mr. Pana Chand Jain
Acts
  • Art. 136 of the Limitation Act, in preference to Art. 134 of the Limitation Act.2.
  • Art. 134 of the New Limitation Act, or Art. 180 of the Old Limitation Act, 1908.
  • Sec 65 of the Code of Civil Procedure Art. 136 of the Limitation Act, 1963
  • Art. 134 of the Limitation Act reads as under:Article 134 Description
  • Section 244 of the Code of Civil Procedure of 1882
  • Sec. 47, CPC read with Art. 136 of the Limitation Act
  • Sec. 47, CPC and Article 134 of the Limitation Act
  • Sec. 47, CPC and Art. 134 of the Limitation Act
  • CODE OF CIVIL PROCEDURE AMENDMENT ACT
  • Articles 134 and 136 of the Limitation Act.
  • article was Art. 134 of the Limitation Act.
  • Section 47 of the Code of Civil Procedure
  • Code of Civil Procedue (Amendment) Act, 1976,
  • sub-section (1) or Section 47. Sub-clause (b)
  • Article 134 of the Limitation Act 1963,
  • Article 65 of the Limitation Act 1963.
  • Art. 134 of of the Limitation Act. 1963
  • Sec. 47 readwith Order 21 Rule 72, CPC
  • Art. 134 of the Limitation Act, 1963.
  • Art. 180 of the Limitation Act, 1908
  • Art 136 of the Limitation Act, 1963.
  • provision of order 21 Rule 95, CPC
  • Article 136 of the Limitation Act.
  • Art. 134 of the Limitation Act,
  • Art. 136 of the Limitation Act.
  • sub-section (2) of Sec. 47
  • Sub-section (1) of Sec. 47,
  • Order 21 rule 95 CPC
  • Order 21 Rule 90, CPC,
  • Rule 94 of Order 21
  • LIMITATION ACT 1963
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mr. Pana Chand Jain
Acts
  • Art. 136 of the Limitation Act, in preference to Art. 134 of the Limitation Act.2.
  • Art. 134 of the New Limitation Act, or Art. 180 of the Old Limitation Act, 1908.
  • Sec 65 of the Code of Civil Procedure Art. 136 of the Limitation Act, 1963
  • Art. 134 of the Limitation Act reads as under:Article 134 Description
  • Section 244 of the Code of Civil Procedure of 1882
  • Sec. 47, CPC read with Art. 136 of the Limitation Act
  • Sec. 47, CPC and Article 134 of the Limitation Act
  • Sec. 47, CPC and Art. 134 of the Limitation Act
  • CODE OF CIVIL PROCEDURE AMENDMENT ACT
  • Articles 134 and 136 of the Limitation Act.
  • article was Art. 134 of the Limitation Act.
  • Section 47 of the Code of Civil Procedure
  • Code of Civil Procedue (Amendment) Act, 1976,
  • sub-section (1) or Section 47. Sub-clause (b)
  • Article 134 of the Limitation Act 1963,
  • Article 65 of the Limitation Act 1963.
  • Art. 134 of of the Limitation Act. 1963
  • Sec. 47 readwith Order 21 Rule 72, CPC
  • Art. 134 of the Limitation Act, 1963.
  • Art. 180 of the Limitation Act, 1908
  • Art 136 of the Limitation Act, 1963.
  • provision of order 21 Rule 95, CPC
  • Article 136 of the Limitation Act.
  • Art. 134 of the Limitation Act,
  • Art. 136 of the Limitation Act.
  • sub-section (2) of Sec. 47
  • Sub-section (1) of Sec. 47,
  • Order 21 rule 95 CPC
  • Order 21 Rule 90, CPC,
  • Rule 94 of Order 21
  • LIMITATION ACT 1963
See more information ...
Smart Summary

Structured Summary of the Opinion (P.C. Jain, J.)

Factual and Procedural Background

This revision arises under Section 115, CPC against an order dated 12 December 1980 of the District Judge, Jaipur City, which held that an application for possession made by the decree-holder purchaser was maintainable under Article 136 of the Limitation Act rather than Article 134.

Material factual chronology (as stated in the opinion):

  • Plaintiffs (father and sons, including Kailash Shankar) obtained a preliminary decree on 1 August 1974 for Rs. 37,447 in a suit for sale of mortgaged property.
  • Execution proceedings were numbered Execution Case No. 34 of 1975. The property was put to auction (auction date indicated as 4 July 1978 with some typographical uncertainty in text) and decree-holder Kailash Shankar purchased it in court auction for Rs. 38,000.
  • Judgment debtor filed objections under Order 21 Rule 90, CPC; the objection petition was dismissed on 2 January 1979 and the sale was confirmed by the executing court on 2 February 1979.
  • Decree-holder moved an application for a warrant for possession on 17 July 1980. An objector (Ganpat Singh) contended the possession application was time-barred, asserting Article 134 (one year from when sale becomes absolute) applied.
  • The District Judge overruled the objection and applied Article 136 (12 years) instead of Article 134. Aggrieved, the objector filed the present revision petition under Section 115, CPC.
  • Additional procedural events noted: one of the judgment-debtors (Abhey/Abhay Kanwar) had earlier filed an objection under Section 47 read with Order 21 Rule 72 which was held not maintainable on 21 July 1979; the decree-holder argued that this date should be taken as the date the sale became absolute for limitation purposes.

Legal Issues Presented

  1. Whether an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree is governed by the specific limitation in Article 134 of the Limitation Act (one year from the date the sale becomes absolute) or by the general Article 136 (twelve years from date decree/order becomes enforceable).
  2. Whether, in view of amendments to Section 47, CPC and the authoritative pronouncement of the Supreme Court in Harnandrai v. Devidutt, questions relating to delivery of possession are matters "relating to the execution, discharge or satisfaction of the decree" and therefore to be decided by the executing court (with consequences for limitation and the availability of a separate suit).
  3. Whether Article 134, insofar as it provided a one-year limitation for delivery-of-possession applications, has become in practice inapplicable or impliedly repealed by reason of the amendment to Section 47 and the application of Article 136 to execution-related proceedings.

Arguments of the Parties

Decree-holder purchaser (Kailash Shankar) — represented by Shri Patodiya

  • Contended that after amendment of Section 47, CPC, purchasers at execution sale are parties for purposes of Section 47 and questions relating to delivery of possession fall within execution proceedings and hence should be governed by the law applicable to execution matters.
  • Relied on the Supreme Court authority in Harnandrai v. Devidutt to show that the executing court must decide such questions and that the 1976 amendment to Section 47 expanded the scope.
  • Argued that because an objection filed by a judgment-debtor was decided (held not maintainable) on 21 July 1979, that date should be treated as the date when the sale became absolute for limitation purposes, making the possession application of 17 July 1980 within time.
  • Submitted that if delivery-of-possession application is time-barred under Article 134, an alternative remedy (suit for possession within twelve years) is available under Article 65/Article 136 area of law (as argued in the opinion, the decree-holder can rely on title and sue within 12 years).

Objector / Petitioner (Ganpat Singh) — represented by Shri V.K. Bandhu

  • Contended that the District Judge erred in applying Article 136; Article 134 of the Limitation Act (special article) applies to applications for delivery of possession by an auction purchaser and prescribes a one-year period from the date the sale becomes absolute.
  • Argued that Section 47, CPC has nothing to do with the period of limitation; it only specifies questions to be determined by the executing court; therefore the proper limitation article is Article 134.
  • Maintained that Article 136 is a general article and cannot displace the special Article 134. If Article 134 bars the application, the purchaser's appropriate remedy would be to file a suit (and if Article 134 applies then the purchaser may resort to a suit for possession within the appropriate limitation period).
  • Relied on a number of authorities (e.g., Mallika v. Ayyappy Karunakaran and other High Court decisions) that, according to counsel, support the applicability of Article 134.

Table of Precedents Cited

Precedent Rule or Principle Cited For (as stated in the opinion) Application by the Court in this Opinion
Mallika v. Ayyappy Karunakaran, AIR 1981 Ker 236 Held that an auction purchaser must apply for delivery of possession on the basis of confirmation of sale within one year under Article 134 of the Limitation Act. Quoted to show the view that Article 134 applies to delivery-of-possession applications; cited as part of prior authorities taking the "Article 134" position which the Court reviewed before reaching its conclusion.
Mani Devi v. Ram Prasad, AIR 1968 Pat 70 A Division Bench held that an application under Order 21 Rule 95 CPC for delivery of possession was not barred by limitation when filed after the sale became absolute; considered Article 180 (old Act) equivalent to Article 134. Cited as authority for the position that the purchaser's application for delivery of possession is governed by the Limitation Act provision applicable to purchasers (old Article 180/new Article 134) and for comparison of limitation periods under old and new Acts.
Ramakrishnayya v. Venkata, AIR 1954 Mad 831 Division Bench held an application by a decree-holder auction purchaser for delivery of possession is governed by Article 180 (old Act) and not by Article 182. Used to illustrate earlier High Court authorities treating delivery-of-possession applications as governed by the purchaser-specific article of the Limitation Act (old Article 180 / new Article 134).
Abdul Aziz v. Chokkan (Full Bench), AIR 1936 Madras 803 Authority relied upon in earlier High Court decisions concerning limitation and auction purchasers (cited in conjunction with other authorities). Referred to as part of the body of older decisions supporting the view that purchaser applications are governed by the purchaser-specific Limitation article.
Nesakber v. Prakash Nag, AIR 1930 Cal 86 Division Bench held the three-year period under Article 180 governing an auction purchaser's application for delivery of possession is to be reckoned from the date of confirmation of sale. Cited to show the consistent view in several High Courts that limitation for purchaser applications runs from confirmation of sale and that Article 180/134 applies.
Babu Lal v. Annapurnabai, AIR 1953 Nag 215 Held similarly that Article 180 applied to purchaser's delivery-of-possession applications. Included among authorities indicating Article 180/134 as the applicable Limitation provision for purchasers.
Harnandrai v. Devidutt, (1973) 2 SCC 467 : AIR 1973 SC 2423 Supreme Court held Section 47 should be construed liberally; purchaser at sale in execution (decree-holder or stranger) is a party for Section 47 purposes and questions as to delivery of possession are matters relating to execution, discharge or satisfaction of the decree and must be determined by the executing court. Treated as the authoritative decision resolving conflicts among High Courts. The Court in the present opinion adopts and follows Harnandrai to conclude delivery-of-possession questions are execution matters for the executing court.
Moyyappa v. Chiddambram, AIR 1920 Mad 797 One of the High Court decisions holding that delivery-of-possession is a matter of execution. Listed among authorities that had viewed delivery-of-possession as execution-related; used to show the divergence of High Court opinions prior to Harnandrai.
Kailash Tarafdar v. Gopal Chandra Poddar, AIR 1926 Cal 798 Calcutta High Court decision holding delivery-of-possession to be a matter of execution. Listed among courts taking the execution-matter view (prior to Harnandrai).
State v. Lakshmi Ammal, AIR 1958 Kerala 309 Kerala High Court held delivery-of-possession is a matter of execution. Listed among authorities supporting the execution characterization.
Ram Ratan v. Chainwamal, AIR 1958 MP 349 Madhya Pradesh High Court held delivery-of-possession to be a matter of execution. Listed among authorities supporting the execution characterization.
Triveni v. Ram Sahai, AIR 1931 Patna 241 Patna High Court decision taking the view that delivery-of-possession was not a matter of execution (i.e., supported the view that a separate suit may be maintainable). Listed among authorities taking the contrary view prior to Harnandrai (i.e., not execution-related).
Ko Taik On v. N.S.A.R. Firm, AIR 1936 Rangoon 298 Rangoon High Court decision taking the view that delivery-of-possession was not a matter of execution. Listed among authorities taking the contrary view prior to Harnandrai.
Ram Singh Gopal Singh v. Abdullah Habibullah, AIR 1944 Lah 402 Lahore High Court decision taking the view that delivery-of-possession was not a matter of execution. Listed among authorities taking the contrary view prior to Harnandrai.
Sevla Ram v. Vishwa Nath, AIR 1945 Bom 386 Bombay High Court decision taking the view that delivery-of-possession was not a matter of execution. Listed among authorities taking the contrary view prior to Harnandrai.
Mst. Surja Devi v. Gulab Devi, AIR 1955 All 49 Allahabad High Court decision taking the view that delivery-of-possession was not a matter of execution. Listed among authorities taking the contrary view prior to Harnandrai.
Mohan Lal v. Bhagwan Das, 1965 RLW 474 This Court had preferred the view (prior to Harnandrai) that delivery-of-possession did not involve a matter relating to execution, discharge or satisfaction of decree. Cited as earlier decisions of this Court adopting the non-execution view; the present opinion treats those earlier decisions as impliedly overruled by Harnandrai (and subsequent amendment of Section 47).
Daya Shankar v. Khub Chand, AIR 1973 Raj 304 This Court had similarly preferred the non-execution view. Cited as earlier state-court authority adopting the non-execution view and considered to be superseded by Harnandrai and the subsequent statutory amendment.
Gheesu Lal v. Chunnu, S.B. Civil Regular Second Appeal No. 456 of 1962 (unreported, decided 31 Aug 1970) An unreported case of this Court in which the same (non-execution) view had been taken. Mentioned among the earlier decisions of this Court aligned with the non-execution view; treated as overtaken by Harnandrai and the legislative amendments discussed in the opinion.
Pukh Raj v. Kavar Chand, 1974 RLW 59 Decision of this Court following the Supreme Court's proposition in Harnandrai that executing court must decide delivery-of-possession questions. Referred to as a post-Harnandrai decision of this Court applying the Supreme Court's ruling that such questions are to be determined by the executing court.
Triveni Bai v. Swaroop Chand, 1974 RLW 79 Decision of this Court following Harnandrai's proposition that no separate suit lies and disputes are for the executing court. Referred to as further confirmation within this Court of the Harnandrai principle.
Ganapathy v. Krishnamachaiar, 45 Ind App 54 : AIR 1917 PC 121 (Privy Council) Privy Council authority urging liberal construction of the statutory provision corresponding to present Section 47; supports the proposition that purchasers remain parties for execution questions. Quoted in support of the proposition that Section 47 should receive a liberal construction and that purchasers at sale remain parties for purposes of execution disputes.
Dr D.C. Jain v. University of Jodhpur, AIR 1977 Raj 89 Decision of this Court cited for the proposition that inconsistency between statutes may lead to implied repeal when they cannot be reconciled. Relied on by the court when discussing the possibility of implied repeal of Article 134 by the combined effect of the 1976 amendment to Section 47 and Article 136.

Court's Reasoning and Analysis

The Court's reasoning proceeds in distinct steps, each articulated in the opinion:

  1. Characterisation of the issue: The Court framed the core question as whether an application by a purchaser at a sale in execution for delivery of possession is governed by Article 134 (special article — one year from sale becoming absolute) or by Article 136 (general article — twelve years from enforceability of decree), particularly in the light of amendments to Section 47, CPC and the Supreme Court's decision in Harnandrai v. Devidutt.
  2. Review of authorities and statutory change: The Court reviewed earlier High Court decisions and recognized a divergence of views — some High Courts treating delivery-of-possession as an execution matter to be dealt with by the executing court, others holding the contrary. The Supreme Court in Harnandrai resolved this conflict by construing Section 47 liberally and holding that purchasers at execution sale are parties for Section 47 purposes and that delivery-of-possession questions are execution questions for the executing court.
  3. Effect of Harnandrai and the amendment of Section 47: The Court accepted Harnandrai as authoritative and observed that subsequent statutory amendment (Code of Civil Procedure (Amendment) Act, 1976) further clarified by Explanation II that questions relating to delivery of possession are to be deemed questions relating to execution, discharge or satisfaction of the decree. The Court concluded that after these developments, delivery-of-possession disputes must be determined by the executing court and that a separate suit is barred.
  4. Tension between Article 134 and Article 136: The Court acknowledged the textual conflict: Article 134 prescribes one year for delivery-of-possession applications, while Article 136 prescribes twelve years for applications for execution of any decree. The Court considered two interpretive approaches:
    • Prefer the article that keeps alive the right (a principle of limitation law preferring the article that preserves the claimant's rights when two articles are equally applicable).
    • Treat Article 134 as being covered by Article 136 (and therefore implicitly repealed or made inapplicable) to the extent that execution matters fall under Article 136 given the statutory understanding of Section 47 after amendment and the Supreme Court ruling.
  5. Finding of inconsistency and implied repeal: The Court held there is an inconsistency between Articles 134 and 136 insofar as they would apply to delivery-of-possession applications now understood to be execution matters under Section 47. Relying on the principle explained in Dr D.C. Jain v. University of Jodhpur and the changed statutory/authoritative position, the Court concluded that Article 134 has become, in effect, impliedly repealed so far as delivery-of-possession applications by purchasers at execution sale are concerned, and that Article 136 governs such applications.
  6. Application to the present facts: Applying this legal conclusion, the Court held that the decree-holder purchaser's application for delivery of possession, though not within one year under Article 134, is within limitation under Article 136 (twelve years) and therefore maintainable before the executing court. The Court rejected the decree-holder's alternative argument about the 21 July 1979 date (because the earlier objection had been held not maintainable and the sale had been confirmed on 2 January 1979).
  7. Procedural consequences and discretionary observations: The Court agreed with the lower court's conclusion to apply Article 136, found no merit in the revision petition, dismissed it, and declined to award costs. The Court also certified a substantial question of law for the Supreme Court's decision under Article 134(A) of the Constitution and allowed a four-month period during which the judgment-debtor shall not be dispossessed.

Holding and Implications

Holding:

The Court concluded that the decree-holder purchaser's application for delivery of possession, though not within the one-year period under Article 134, was within time under Article 136 of the Limitation Act. The revision petition challenging the lower court's reliance on Article 136 was dismissed and the lower court's order was affirmed.

DISPOSED OF: the revision petition is dismissed and the order of the District Judge applying Article 136 is upheld.

Immediate consequences and directions (as recorded in the opinion):

  • The decree-holder purchaser is entitled to seek delivery of possession in the executing court and the application on record is maintainable under Section 47, CPC and within limitation under Article 136 of the Limitation Act.
  • No costs were ordered in favour of either party.
  • The Court certified a substantial question of law for the Supreme Court pursuant to Article 134(A), and granted a four-month period during which the judgment-debtor shall not be dispossessed.

Broader legal implication as stated in the opinion: The Court expressed the view that, by virtue of the amendment to Section 47, CPC and the Supreme Court's decision in Harnandrai v. Devidutt, questions of delivery of possession that arise in execution proceedings fall within the scope of execution and are to be governed by Article 136 rather than Article 134, and that Article 134 is thereby rendered effectively inapplicable to such execution-related applications (i.e., impliedly repealed insofar as they cover the same subject-matter). The Court certified this as a question for the Supreme Court to decide.

Show full summary ...

    Ganpat Singh v. Kailash Shankar & Ors.(157)

    The Judgment of the Court was delivered by

    P.C Jain, J.:— This revision petition under Sec. 115, CPC is directed against the order dated 12th December, 1980, passed by the learned District Judge, Jaipur City, Jaipur in Civil Misc. Case No. 1 of 1980, by which an application for possession filed by the decree-holder purchaser was held to be maintainable by applying Art. 136 of the Limitation Act, in preference to Art. 134 of the Limitation Act.

    2. The material facts lie in a narrow compass and may be stated thus: Applicant Kailash Shankar is a decree-holder. Chouthmal and Kailash Shankar plaintiffs who were father and sons obtained a preliminary decree in a suit for sale of mortgage property situated in Chowkri Ghat Darwaza, Kothi Maniranji, Jaipur City, against defendants Ganpat Singh, Bharatsingh, Smt. Prakash Kanwar and Smt. Damma Kanwar alias Smt. Abhay Kanwar. A preliminary decree was passed on 1st August, 1974 for a sum of Rs. 37,447.00 only. The decree-holder applied for the sale of mortgaged property in execution case No. 34 of 1975. The property was to be auctioned on ???4th July, 1978. Decree-holder Kailash Shankar himself purchased the property for a sum of Rs. 38,000/-, in a court auction. The judgment debtor filed objections against the same under Order 21 Rule 90, CPC, on various grounds of irregularities and illegality in publishing and conducting the sale. The objection petition was, however dismissed on 2nd January, 1979 and, consequently the sale was confirmed by the executing court on 2nd February, 1979. Kailash Shankar decreeholder purchaser moved an application in the executing court for issuing a warrant for possession in his favour on 17th July, 1980. Ganpat Singh objector raised objections to the petition of the auction purchaser. It was contended by the objector petitioner that the application for possession is time-barred. It was submitted that the application for possession was filed on 17th July, 1980 and the sale was confirmed on 2nd January, 1979. It was submitted by the petitioner that the application is governed by Art. 134 of of the Limitation Act. 1963 and the period of limitation prescribed for such application is one year and the time begins to run from the sale becomes absolute. The learned District Judge vide his order dated 12th December 1980, over ruled the objections dismissing the objection petition filed by the petitioner and held that the application is governed by Art. 136 of the Limitation Act. and as such, it was within limitation, as the limitation prescribed under Art. 136 is 12 years. Aggrieved by the order passed by the lerned District Judge, the present revision petition has been filed. The decree-holder purchaser has filed an application on 25th November, 1985 and submitted that after the sale was confirmed on 2nd January, 19???9. Smt. Abhey Kanwar one of the judgment-debtor, filed an objection petition under Sec. 47 readwith Order 21 Rule 72, CPC and the objections were held not maintainable, after confirmation of the sale. The learned counsel appearing for the decree-holder purchaser submitted that as the objections were dismissed on 21st July, 1979. therefore this date should be taken to be a date when the sale became absolute Shri V.K Bandhu learned counsel for the petitioner, submitted that the learned lower Court has committed material irregularity in the exercise of its jurisdiction by applying Art 136 of the Limitation Act, 1963. His further submission is that Sec. 47 C.P.C has nothing to do with the period of limitation as it only ???ys down, what questions are to be determined by the Court executing the decree. He further urged that even under the amended Section 47 of the Code of Civil Procedure, a person is required to apply for delivery of possession of the immovable property purchased in auction sale and such an application is to be moved within one year from the d???te when the sale is made absolute, and the proper article applicable is Art. 134 of the Limitation Act, 1963. Shri Bandhu also submitted that Art 136 is a general Article and Art. 134 is a special article which deals with the application to be moved for delivery of possession by the purchaser of immovable property at a sale in execution of a decree and the period provided for such an application is one year from the date when sale becomes absolute. He has further submitted that the remedy open to the auction purchaser, is either to apply under Art. 134 or to file a suit within 12 years. Shri Bandhu, thus, wants to canvass that even if the application for delivery of possession is barred by limitation under Art. 134 of the Limitation Act, still a remedy is available to the purchaser to file a civil suit for the recovery of the property. In order to substantiate his arguments Shri Bandhu placed reliance on a number of authorities. In (1) Mallika v. Ayyappy Karunakaran, AIR 1981 Ker 236, on which reliance has been placed, the Kerela High Court has held as under:—

    “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. 5. 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 incohate confirmation granted before the proceedings terminated and the sale became absolute.”

    3. In the above case, it was held that the auction purchaser must apply for delivery of possession of the property on the basis of confirmation of sale within one year and the proper article was Art. 134 of the Limitation Act. In (2) Mani Devi v. Ram Prasad, AIR 1968 Pat 70, a Division Bench of the Patna High Court has held that an application of decree-holder under Order 21 rule 95 CPC for delivery of possession was not barred by limitation either under the Act of 1908 or under the Act of 1963, since the application was filed on 4th April, 1964, and the sale became absolute on 29th June, 1963, when the appeal of the judgment-debtor was dismissed. The learned Division Bench considered Art. 180 of the Limitation Act, 1908 which provided a period of three years for an appropriate application by a purchaser of immovable property, at a sale in execution of a decree for delivery of possession from the date when the sale became absolute. Art. 180 of the Limitation Act, 1908 is the same as Art. 134 of the Limitation Act 1963, except that the period for such an application under Art. 134 of the Limitation Act, 1963 it is one year only; but the starting point in Thi???d column is the same namely when the sale became absolute? In (3) Ramakrish???ayya v. Venkata, AIR 1954 Mad 831, a Division Bench of the Madras High Court also held that an application by a decree-holder auction-purchaser for delivery of possession of the immovable property purchased by him in execution sale is governed by Art. ???80 and not by Art. 182. In this case, reliance has been placed on (4) Abdul Aziz v. Chokkan (FB), AIR 1936 Madras 803. In (5) Ne???kber v. Prakash Nag, AIR 1930 Cal 86, a Division Bench of the Calcutta High Court held that the period of three years under Art 180 governing the application of the auction purchaser for delivery of possession of property purchased is to be reckoned from the date of the confirmation of sale. The same view was held by a Division Bench of the Nagpur High Court in (6) Babu Lal v. Annapurnabai, AIR 1953 Nag 215. Thus, in all the cases referred to above, it was held that the appropriate Art. applicable for an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree is Art. 134 of the New Limitation Act, or Art. 180 of the Old Limitation Act, 1908. In the statement of objects and reasons to the Limitation Act, 1963, it was also stated that as the existing Art. 182 is being omitted, Article 180 which the proposed Article 133 (new Article 134) seeks to replace, will apply to all purchasers in execution whether decree-holder or not. The period however is being reduced to one year from three years. Art. 134, thus, enables a Court auction purchaser to apply for delivery of possession under Order 21 Rule 95, CPC within one year when the sale became absolute and he fails to so apply he can yet rely on his title, and sue for possession within 12 years under Article 65 of the Limitation Act 1963. A fair reading of Article 134 will give this result. But, this is seriously challenged by Shri Patodiya, learned counsel for the petitioner decree-holder purchaser. Shri Patodiya submitted that Sec. 47 CPC has been drastically amended by the Code of Civil Procedure (Amendment) Act, 1976, which came into force with effect from 1st February, 1977 by which sub-section (2) of Sec. 47 was omitted and Explanation I and Explanation 11(a) and (b) were substituted. The material change that was effected through this amendment has been disclosed in the Explanation. Shri Patodiya, learned counsel for the petitioner submitted that sub-clause (d) of Explanation II of Section 47 of the Code of Civil Procedure has been newly added and, it has extended the scope of question relating to the execution discharge or satisfaction of the decree within the meaning of sub-section (1) or Section 47. Sub-clause (b) of Explanation II thereto provides that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge, or satisfaction of the decree within the meaning of this section. Shri Patodiya further pointed out that the said amendment was made vide the Code of Civil Procedue (Amendment) Act, 1976, on account of the proposition of law laid down by the Hon'ble Supreme Court in (7) Harnandrai v. Devidutt, (1973) 2 SCC 467 : AIR 1973 SC 2423. He submitted that there were divergence of opinions between the various High Courts of this country as to whether the question of delivery of possession is ane relating to execution, discharge or satisfaction of the decree. Madras High Court in (8) Moyyappa v. Chiddambram, AIR 1920 Mad 797, Calcutta High Court in (9) Kailash Tarafdar v. Gopal Chandra Poddar, AIR 1926 Cal 798, Kerala High Court in (10) State v. Lakshmi Ammal, AIR 1958 Kerala 309 and Madhya Pradesh High Court in (11) Ram Ratan v. Chainwamal, AIR 1958 MP 349, have held that it is a matter of execution, while the High Court of Patna in (12) Triveni v. Ram Sahai, AIR 1931 Patna 241, Rangoon High Court in (13) Ko Taik On v. N.S.A.R Firm, AIR 1936 Rangoon 298; Lahore High Court in (14) Ram Singh Gopal Singh v. Abdullah Habibullah, AIR 1944 Lah 402; Bombay High Court in (15) Sevla Ram v. Vishwa Nath, AIR 1945 Bom 386, and Allahabad High Court in (16) Mst. Surja Devi v. Gulab Devi, AIR 1955 All 49, have taken a different view. So far as this Court is concerned, in (17) Mohan Lal v. Bhagwan Das, 1965 RLW 474 and (18) Daya Shankar v. Khub Chand, AIR 1973 Raj 304 has preferred the latter view. There is an unreported case of this Court in (19) S.B Civil Regular Second Appeal No. 456 of 1962 Gheesu Lal v. Chunnu, decided on 31st August, 1970, in which also the same view had been taken. One View that an application for delivery of possession under Order 21 Rule 95, CPC did not involve a matter relating to execution, discharge or satisfaction of the decree, as the decree is satisfied as soon as the same is confirmed and sale certificate has been issued and the High Courts holding this view were of the opinion that the remedy for the auction purchaser for possession of the property purchased by him in the Court sale was to file a separate suit. The view that was taken by the other High Courts was based on the thinking that the execution of a decree-holder's decree cannot be said to be satisfied until in one case he has received the purchase money paid into the Court and in another case until he was put into possession of the property of the judgment-debtor which he has purchased. This Conflict is now set at rest by the authoritative pronouncement of the Supreme Court in Harnandrai v. Devidutt (Supra). For better appreciation of the point in issue, it Will be useful to quote the relevant portion of the judgment as under:—

    “6. Section 47 in our view should be construed liberally. As far back in 1892 19 Ind App 166 (PC) the Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Sec. 47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachaiar, 45 Ind App 54 —(AIR 1917 PC 121). If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who had been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decree-holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistence to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.

    8. It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind App 54 : (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of section 47. Having regard to this, all questions arising between the auction purchaser and the judgment-debtor must in our view be determined by the executing court and not by a saparate suit.”

    4. In view of the proposition laid down by their Lordships of the Supreme Court the question of delivery of possession under Order 21 Rule 95, CPC is one relating to execution, discharge and satisfaction of the decree. thus, the view taken by the other High Courts, referred to above, and taken by this Court in Mohan Lal's case (Supra) and Daya Shankar v. Khub Chand (AIR 1973 Raj. 304) must be deemed to have been overruled. After the pronouncement made by the Hon'ble Supreme Court in the above referred case, this Court had occasion to consider this problem. The reported cases are (20) Pukh Raj v. Kavar Chand, 1974 RLW 59 and (21) Triveni Bai v. Swaroop Chand, 1974 RLW 79 In both the cases following the proposition of law laid down by this Hon'ble Supreme Court, this Court held that no separate suit lies for delivery of possession of the property purchased by the decree-holder auction purchaser at court sale and he must apply to the executing court for delivery of possession of the said property. Their Lordships of the Supreme Court in Harnandrai's case have held that after the 1956 amendment of the CPC the distinction between decree-holder auction purchaser and stranger auction purchaser has vanished and both are unquestionably parties to the suit. It was also observed by their Lordships that if on account of sale all questions relating to execution, discharge and satisfaction came to an end. There was no purpose why the provisions as such Rules 95 to 102 should have been included in Rule 21, CPC. A separate suit was, therefore, held to be barred Under the Code of Civil Procedure prior to its amendment in 1956, this view p evaded for the applicability of Sec. 57 was that questions must be between the parties to the suit or their representatives and it must relate to the execution, discharge or satisfaction of the decree. If these factors are present then the question shall be determined by the court executing the decree and not by a separate suit. It is important to remember that after the decision of the Privy Council in (22) Ganapathy v. Krishnamachaiar, AIR 1917 PC 121 an amendment was made in Sec 47, CPC and, it appears that after the pronouncement of the judgment by the Hon'ble Supreme Court Harnandrai's case (supra) on 4th May 1973. Sec. 47, CPC has again been amended and, to resolve the dispute finally Explanation II, comprised in two parts (a) and (b) was substituted, making it clear that a question relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be question relating to execution, discharge or satisfaction of the decree within the meaning of this section. It may be noted here that all questions relating to delivery of possession, by a deeming clause, have been held to be questions relating to the execution, discharge and satisfaction of the decree for the purpose of sub-clause (1) of Sec. 47, which provides that questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of the decree, shall be determined by the? Court executing the decree and not by a separate suit. Without resorting to any authority, it is clear that all questions relating to delivery of possession of property which has been purchased by a purchaser, whether he be a decree-holder purchaser or stranger in the auction sale in execution of the decree shall be regarded questions relating to execution, discharge and satisfaction of the decree and it is also clear that all questions arising between the parties to the suit and relating to execution, discharge and satisfaction of the decree are to be determined by the Court executing the decree and not by a separate suit and for the purpose of Sub-section (1) of Sec. 47, a purchaser of property at sale in execution of a decree shall be deemed to be a party to a suit in which a decree is passed. Thus, an auction purchaser is a party to the suit and questions arising relating to the delivery of possession of the property purchased at a sale in execution of the decree will be questions relating to execution, discharge and satisfaction of the decree and such question must be decided by the executing court and a separate suit is barred.

    5. The question that arises for further consideration is what would be the effect if the decree-holder purchaser fails to make an application under the provision of Order 21 Rule 95, CPC for the delivery of possession of the property to him from the judgment-debtor within the time prescribed under Art. 134. Is he entitled to file a civil suit for possession claiming possession on the strength of the sale certificate issued to him? Section 65 of the Code of Civil Procedure provides as under:—

    65. “Purchaser title:— Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.”

    6. As per the provisions of Sec. 65, CPC where immovable property is sold in execution of a decree the property shall be deemed to have been vested in the purchaser from the time when the property is sold. Art. 134 of the Limitation Act prescribes period of limitation for moving an application for delivery of possession by a purchaser of immovable property, at a sale in execution of a decree. The period prescribed is one year and commences from the time the sale becomes absolute. Art. 134 of the Limitation Act reads as under:—

    Article 134 Description of suit Period of limitation Time from which period begins to run 134. For delivery of possession by a purchaser of immo-vable property of a sale in execution of a decree One year Where the sale becomes absolute

    7. Form the discussions made above, it is clear that all questions relating to delivery of possession are questions relating to execution discharge or satisfaction of the decree and are to be decided by the executing Court and not by a separate suit. Art. 134 prescribes a period of one year for moving such an application. If we read Sec. 47, CPC and Article 134 of the Limitation Act in view of the above discussion, it will result into a very alarming situation, in the sense that if an auction purchaser fails to move an application within one year from the date the sale becomes absolute for the purpose of delivery of possession of the proporty which he has purchased at a sale in execution of a decree or his application is held to be time-barred, he will have no remedy available to him i.e he cannot maintain a suit in view of the bar created by Sec. 47 of the Code of Civil Procedure. Formerly, the view was that he could maintain a suit for the recovery of possession within a period of 12 years, but this remedy in view of the discussions made above, is now not available to the decree-holder purchaser. In such circumstances, whether it can be said that the decree-holder purchaser has lost title to the property which was created in his favour by virtue of Sec 65 of the Code of Civil Procedure Art. 136 of the Limitation Act, 1963 deals with the application for execution of any decree and the period of limitation is 12 years and the time begins to run when the decree or order become enforcable. The view which I have expressed above that the question relating to delivery of possession by a purchaser of immovable property at a sale in execution of a decree is a question relating to the execution of the decree. Thus, it follows that the decree-holder purchaser can certainly move the executing court for delivery of possession as till the possession is delivered, decree cannot be held to be satisfied. In my opinion, therefore, the decree-holder purchasser is entitled to seek his remedy for delivery of possession of the property which he has purchased at a sale in execution of the decree by moving an application to the executing court, under Article 136 of the Limitation Act. Such an application will be solely within the jurisdiction of the executing Court to decide. Any matter relating to the execution, discharge or satisfaction of the decree is to be determined by the executing Court and the question relating to the delivery of possession of the property purchased by the auction purchaser at a sale in execution of the decree will be a question within the ambit of Sec. 47 of the Code of Civil Procedure to be decided by the executing Court. Such an application shall be maintainable under Sec. 47. IPC and will be within time under Art. 136 of the Limitation Act. The question that arises is when a specific Article, Art. 134, provides a period of one-year for an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree and a general Article, Art. 136 provides 12 years' period for such an application, which out of the two Articles should be followed. It appears to me that in order to resolve the conflicting decisions in the country, as observed by the Hon'ble Supreme Court in Harandrai's case, suitable amendment was made in Sec. 47, IPC and, in fact, it resolved the dispute which was prevailing in the country, among the various High Courts But, what would be the consequential effect under the other enactments dealing with the same subject-matter was not taken into consideration. This dispute or the controversy which has arisen can be resolved in two ways, one is that Art 134 and 136 may be taken to be over-laping as undoubtedly the question of delivery of possession to a purchaser of immovable property at a sale in execution of the decree is a subject-matter of execution, discharge or satisfaction of the decree. It is a well settled principle of interpretation of law of limitation that in cases where two Articles are equally applicable the rule is that Article, which keeps alive the right of the party, must be preferred in comparison to one that bars the right. Another principle on which this controversy can be resolved is that Art. 134 of the Limitation Act stands covered under Art. 136 so far as an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree is concerned and consequently it is of no use and be taken to have been impliedely repealed. It appears to me that in view of the amendment made in Sec. 47 of the Code of Civil rocedure Art. 134 has become obsolete as the relief to be given to the purchaser could certainly be given and should be given under Art. 136 of the Limitation Act. It is true, of course, that the courts will not recognise the principle of implied repeal unless the intent to repeal clearly appears, as ordinarily there is a presumption against the intention of the legislature to repeal legislation by mere implication The presumption is, however, not irrebuttable and is over-thrown if the new law is inconsistent with or repugnant to the old law for the inconsistency or repugnancy reveals in intent to repeal the existing law. The inconsistancy or repugnancy may arise between the provisions of the old and new statutes if they cannot be reconciled and made to stand together, as has been held by this Court in (23) Dr D.C Jain v. University of Jodhpur, AIR 1977 Raj. 89. In view of the discussion made above, it is clear that there is inconsistency between Articles 134 and 136 of the Limitation Act. The same subject-matter in view of the amendment made in Sec. 47 of the Code of Civil Procedure is covered under Art. 136 of the Limitation Act, which prescribes limitation for a period of 12 years, while for moving an application under Art. 134 of the Limitation Act it is only one year inasmuch there is another consequence that a person having the title over the property in his favour will not be in a position to file a suit for recovery of property. If Art 134 is allowed to operate independently of Art. 136, this remedy would be to file successive suits for damages for use and occupation only. Thus, I am of the view that the matter which is dealt with under Art. 134 of the Limitation Act is fully covered under Art. 136 of the Limitation Act by virtue of amendment made in Sec. 47, CPC and Art. 134 of the Limitation Act stand impliedly repealed

    8. In the premises aforesaid, the application for delivery of possession moved by the decree-holder purchaser, though not within limitation under Art 134 of the Limitation Act, but is well within limitation under Art. 136 of the Limitation Act, and the decree-holder purchaser is entitled to seek his remedy for obtaining possession of the immovable property which he has purchased at a sale in execution of the decree from the executing court on the basis of the application which arleady on the record.

    9. Shri Patodiya, learned counsel for the decree-holder, also sumitted that one of the judgment-debtors moved an application on 2nd January, 1979 raising certain objections in the matter of execution, which was decided on 21st July 1979 by holding that the same was not maintainable. In view of the fact that th application was not held maintainable it will ???e deemed that no such application was made. The contention of Shri Patodiya. learned counsel for the decree-holder purchaser, was that since the objection raised by the judgment-debtor stood decided on 21st July, 1979, his application for delivery of possession moved on 17th July 1980 should be deemed to be within limitation, as this is the date on which the final objections raised by the judgment-debtor should be taken to have been decided and the sale should be deemed to be absolute. However, in view of the fact that the application was not held maintainable, I am of the opinion that the submissions made by Shri Patodiya are not well-founded, as the sale was already confirmed on 2nd January, 1972.

    10. Shri Bandhu, learned counsel for the judgment-debtor submitted that unfortunately this property was purchased in court sale by the decree holder purchaser, for a petty sum of Rs. 38,000/-, though the property is of more than Rs. 10,00,000/-. The learned counsel for the judgment-debtor, 6a behalf of his client, even offered to make a payment of Rs. 2,00,000/- to the decree-holder but the counsel appearing for the decree-holder did not accept the offer which also proves that the property must be of considerable value. However, in the present revision petition, this question is not the subject-matter in dispute before me and I cannot do anything in the matter even if hardship is likely to be caused to the judgment-debtor.

    11. In the result, I concur with the decision given by the learned lower Court. I do not find any force in this revision petition and hereby dismiss it. But, in the facts and circumstances of the case, I make no order as to costs.

    12. Learned counsel for the judgment-debtor prays for Leave to appeal to the Hon'ble Supreme Court. As the case involves a substantial question of law of general importance and the question raised needs to be decided by the Hon'ble Court, I think, it is a fit case to be certified under Art. 134(A) of the Constitution of India for appeal to the Hon'ble Supreme Court under Art. 133(1). The following is the question required to be decided by the Hon'ble Supreme Court:—

    “A purchaser of immoveable property at a sale in execution of a decree is required to move an application for delivery of possession within one year, when the sale becomes abolute, under Art. 134 of the Limitation Act, 1963. In case, he fails to do so, whether his right to recover possession by Civil Court is barred under Sec. 47 of the Civil Procedure Code as question relating to delivery of possession is a question relating to execution, discharge or satisfaction of the decree, or Art. 134 of the Limitation Act, stands impliedly repealed in view of Sec. 47, CPC read with Art. 136 of the Limitation Act and purchaser's remedy for possession lies under Art. 136 of the said Act which provided a period of 12 years from the date of decree becoming enforceable”.

    13. Certificate is accordingly granted. Four months' period is allowed during which the judgment-debtor shall not be dispossessed.

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