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State Bank Of Travancore v. M.R Sankaran
Factual and Procedural Background
In execution of a decree the decree-holder purchased immovable property at a court sale held on 28.3.1979. The sale was confirmed on 29.5.1979. A sale certificate was ultimately granted on 21.5.1988. The decree-holder (auction purchaser) filed Execution Application No. 597 of 1988 for delivery under Order XXI Rule 95 of the Code of Civil Procedure on 22.9.1988. The judgment-debtor contended that the application for delivery was barred by limitation. The executing court accepted this contention and dismissed the application as time-barred. The present opinion is rendered on a revision petition challenging that dismissal.
The executing court treated Article 134 of the Schedule to the Limitation Act, 1963 as governing applications for delivery by a purchaser of immovable property sold in execution. Article 134 prescribes a one-year limitation period, running from "when the sale becomes absolute." In the present case the sale became absolute on 29.5.1979; the application for delivery was filed nearly nine years after that date, leading the lower court to hold it barred by limitation.
Legal Issues Presented
- Whether the period of limitation for an application for delivery by an auction purchaser under Article 134 of the Limitation Act, 1963 begins to run from the date "when the sale becomes absolute" (date of confirmation) or from the date on which the court grants the sale certificate.
- Whether an auction purchaser may file an application for delivery before the sale certificate is actually granted, or must wait until the certificate has been issued.
Arguments of the Parties
Revision Petitioner (Auction Purchaser)
- Contended that the purchaser cannot be required to file an application for delivery merely because the sale has become absolute; the purchaser must wait until the sale certificate is granted.
- Argued that where the sale certificate is granted after a long delay (as in the present case, about eight years later), it would be inequitable to hold the application time-barred from the earlier confirmation date.
- Maintained that the starting point of limitation in Article 134 should be read as "when the sale certificate is granted," and that the application in question was filed within one year of the date of the sale certificate.
Judgment-Debtor / Respondent
- Contended that the application for delivery was barred by limitation because Article 134 prescribes one year from the date the sale becomes absolute (the confirmation date, 29.5.1979), and the application was filed nearly nine years thereafter.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sm. Anarjan Bibi v. Chandramani (AIR 1932 Calcutta 75) | Held that time would run from the date of confirmation of the sale; sale certificate bears the date on which the sale became absolute; an application may be made though no order can be made until the certificate issues. | Adopted as authority supporting the proposition that limitation begins from the date the sale becomes absolute and that the issuance of the certificate does not postpone the commencement of limitation. |
| Babulal Nathoolal v. Mt. Annapurnabai (A.I.R 1953 Nagpur 215) | Stated Article 180 (Limitation Act, 1908) makes no reference to the sale certificate; rights vest from time property is sold under Section 65; certificate is not a title deed but evidence of title. | Relied on to show that an application complying with the article cannot be dismissed on ground of limitation merely because a certificate has not yet been issued; delay in issuing a certificate does not affect the limitation period. |
| Kasinatha Pandaram v. Viswanatha Pandaram (79 Law Weekly 191) | Held that limitation for taking delivery of court-auctioned property starts from the date of confirmation of sale and not from the date of the issue of the sale certificate. | Cited as settled authority that the date of confirmation (sale becoming absolute) is the relevant commencement point for limitation in such applications. |
| Abdul Ghani v. Lalchand (AIR 1940 Lahore 230) | Observed that title to the property vests in the auction purchaser from the date of sale and that the contention that right to possession accrues only from the date of the sale certificate is not good in law. | Referred to for the proposition that title vests from sale date and that possession rights are not postponed until certificate issuance. |
| Ranjit Singh v. Baldeo Singh (ILR 30 All. 390) | Noted that although grant of a certificate is a necessary preliminary to an application under the relevant Code provision, an application will be barred under the Limitation Act if not made within the prescribed period; the date the certificate bears (date of confirmation) is the relevant date. | Referenced for the view that the date the certificate bears (i.e., confirmation date) is the operative date for limitation purposes. |
| Chandrcmani Saha v. Anarjan (AIR 1934 P.C 134) | Advised that the words "When the sale becomes absolute" in the Limitation provision must be construed with regard to relevant provisions of Order 21 of the Code. | Invoked to support a construction that takes into account the Code's provisions (Order 21) in identifying the date when sale becomes absolute for limitation purposes. |
Court's Reasoning and Analysis
The court examined the relevant provisions of the Code of Civil Procedure (Order 21, Rules 85, 88, 89–96, 94 in particular) and Section 65 of the Code alongside Article 134 of the Limitation Act, 1963. The analysis proceeded in these steps:
- Statutory framework: When immovable property is sold in execution, sale becomes absolute on confirmation (Rule 92). Section 65 deems the property to have vested in the purchaser from the time when the property is sold (the sale date) and not from the date the sale becomes absolute or the date of grant of the sale certificate.
- Nature of sale certificate: Rule 94 requires the court to grant a sale certificate bearing the date on which the sale became absolute. The certificate is a document evidencing title, not the source of the purchaser's title.
- Content of Rule 95: Rule 95 prescribes the court's duty to order delivery when certain conditions are met (sale made absolute, certificate granted, and application by the purchaser). Rule 95 does not specify when the purchaser must file the application; it prescribes when the court may order delivery.
- Interpretation of Article 134: Article 134 prescribes a one-year limitation period for applications for delivery by auction purchasers and specifies that time begins to run "when the sale becomes absolute." The court reasoned that if the legislature intended the running of time to begin from grant of the sale certificate, it could have so stated; it chose the earlier point — when the sale becomes absolute.
- Precedent support: The court reviewed and agreed with High Court decisions (Calcutta, Nagpur, Madras) and other authorities which hold that limitation for such applications starts from the date of confirmation/sale becoming absolute and that the absence or delay in issuing the certificate does not extend the limitation period.
- Conclusion from law and facts: Given that the sale became absolute on 29.5.1979 and the application for delivery was filed well beyond the one-year period prescribed by Article 134, the court concluded the application was time-barred. Although a purchaser need not wait for the grant of the certificate before filing an application, the purchaser must file within the statutory period measured from the date the sale became absolute; the court cannot alter the legislature's prescription.
Holding and Implications
Revision petition dismissed; the application for delivery was held barred by limitation.
Implications and direct consequences:
- The court held that the one-year limitation under Article 134 begins to run from the date the sale becomes absolute (the date of confirmation), not from the date the sale certificate is actually granted.
- An auction purchaser must file an application for delivery within one year from the date the sale becomes absolute; delay in the issuance of the sale certificate does not extend the limitation period.
- Although an application may be filed before the certificate is formally granted, the court may not order delivery until the certificate has been issued; the certificate itself is an evidentiary document and not the source of title.
- The opinion expressly accords with the views previously taken by the Calcutta, Nagpur and Madras High Courts as cited in the judgment.
1. In execution of a charge decree, decree - holder purchased the property in court sale on 28.3.1979 It was confirmed on 29.5.1979 Sale certificate was granted on 21.5.1988 Decree-holder-auction purchaser filed E.A No. 597 of 1988 for delivery under Order XXI Rule 95 of the Code of Civil Procedure on 22.9.1988: Judgment debtor contended that application for delivery was barred by limitation. The executing court accepted this contention and dismissed the application as barred. This order is now challenged. Application for delivery of possession by purchaser of immovable property of a sale in execution of decree is governed by Article 134 of the Schedule to the Limitation Act, 1963. The period of limitation is one year and the time from which period begins to run is “when the sale becames absolute”. In this case sale became absolute on 29.5.1979 Application for delivery was filed nearly nine years after the sale became absolute. It was in this view that the executing court held that application was barred by time.
2. Learned counsel for the revision petitioner contends that auction purchaser cannot file application for delivery merely because sale has become absolute; he has to wait till sale certificate is granted and in cases like the present one where sale certificate is granted after eight years, it would be inequitable to hold that application for delivery would be barred even before the issue of sale certificate. According to him even though third column of Article 134 mention starting point of limitation as “when the sale becomes absolute”, it must actually be read as “when the sale certificate is granted”. The application for delivery has been filed within one year from the date on which sale certificate was granted and hence, it is contended, application was within time.
3. My attention is invited to decisions of three High Courts. The earliest is the decision in Sm. Anarjan Bibi v. Chandramani (AIR 1932 Calcutta 75). At the relevant time, period of limitation prescribed under the 1908 Act was three years from the date on which sale becomes absolute as indicated in Article 180. In that case application for delivery was made within three years from the date on which sale certificate was granted but beyond three years from the date on which sale became absolute. A Division Bench of the High Court consisting of Mukerji and Mitter, JJ. observed:
“It is not possible to get over the position that time would run from the date of confirmation of the sale………………………….The date on which the sale becomes absolute is recognized as a distinct and separate date from the date on which the sale certificate is actually issued, because Order 21, Rule 94, says that though the grant of the certificates will follow the confirmation and consequently must be subsequent to the sale becoming absolute, the sale certificate shall bear date the day on which the sale became absolute”.
4. Considering the arguments based on hardship to the parties the court observed:
“We do not see why the auction-purchaser should not make the application for delivery of possession, so long as nothing in the shape of a definite bar stands in his way………….”
5. Referring to arguments based on Rules 95 and 96 of Order 21 regarding mandate of existence of certificate, the court observed;
“That is so; but the only effect of that is that no order can be made until the certificate has issued, and not that an application under either rule should on that account be delayed:
6. A Bench of Nagpur High Court consisting Hidayatullah and Sen, JJ. in Babulal Nathoolal v. Mt. Annapurnabai (A.I.R 1953 Nagpur 215) had to consider a specific question whether application for delivery could be filed without sale certificate. Referring to Article 180 of the Limitation Act, 1908 the bench observed:
“This article makes no reference to the certificate. It merely speaks of ‘a purchaser’. The question is whether the purchaser who has not yet obtained a certificate from the Court is incompetent to apply or if he does apply the Court is bound to dismiss his petition unless he can produce a certificate within the period of limitation:
7. The court pointed out that rights of the purchaser at a court also do not commence when the certificate is granted and under Section 65 of the Code the property is deemed to have vested in the purchaser from the time the property is sold and not from the time when the sale becomes absolute. Certificate is not a title deed. It is merely evidence of title. The bench further observed:
“Article 180, Limitation Act, provides its own conditions. It is, not made subservient to the provisions of Order 21 Rules 94 and 95. If there was no provision of law imposing a stamp duty the court would be bound to grant a certificate forthwith. Since there may be delay in issuing the certificate the certificate is made to bear the date on which the sale becomes absolute:
8. The court held that the application complied with all the requirements of Article 180 and could not be dismissed on the ground of limitation. With reference to Rule 95 of Order 21, the bench pointed out that.
“There is nothing in that rule to make it incumbent for the purchaser to file the certificate along with his application. On the confirmation of the sale it is compulsory to issue the certificate. The failure to issue the certificate - whether the delay arises due to the action of the Court or to the inaction of the purchaser - has no bearing on the limitation for the application under Article 180. The purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It is patent, therefore, that the issue of a certificate is not the ‘sine qua non’ of the application. The application being properly within limitation the evidence of title could be supplied later and this is what has happened.”
9. In the decision in Kasinatha Pandaram v. Viswanatha Pandaram (79 Law Weekly 191) court sale was held on 21-12-1937, sale was confirmed on 22-7-1958 with regard to 15/16 share, sale certificate was issued on 23-7-1959 and application for delivery was made on 7-12-1961, within three years of the date of issue of certificate but beyond three years of the date of confirmation of sale. The Madras High Court referred to the observations of a Division Bench of Lahore High Court in Abdul Ghani v. Lalchand (AIR 1940 Lahore 230) to the effect that title to the property after the sale in made absolute vests in the auction purchaser from the date of the sale and that the right to possession accrues only from the date of the sale certificate is not good in law. The court also referred to the observations of the Allahabad High Court in Ranjit Singh v. Baldeo Singh (ILR 30 All. 390) to the effect that although the grant of a certificate is a necessary preliminary to an application under Section 318 (Present Order 21, Rule 91) such application will be barred under Section 178 (now Article 134) of the second Schedule to the Limitation Act, if not made within three years of the date on which certificate is granted, which we take to mean the date it bears, that is, the date of the confirmation of sale; The court also referred to the observations of the Judicial Committee of the Privy Council in Chandrcmani Saha v. Anarjan (AIR 1934 P.C 134) to the effect that in construing the meaning of the words “When the sale becomes absolute” in Article 180, regard must be had not only to the provisions of Order 21, Rule 92(1) but also to the other material provisions of the Code. The court ultimately held that “it is practically settled law that, when a person wants to take delivery of the property purchased in a court auction, the limitation starts from the date of the confirmation of the sale and not from the date of the issue of the sale certificate by the court.”
10. When sale of immovable property is ordered under Order 21 Rule 88 and it takes place, Rule 85 requires that full amount of purchase money payable together with the amount required for the general stamp paper for the certificate under Rule 94 shall be paid by the purchaser into court before the court closes on the fifteenth day from the date of the sale of the property, subject of course to the provisions of set off which may be available under Rule 72. Rules 89 to 91 provide for application being filed to, set aside sale. Rule 92 explains, inter alia, when a sale becomes absolute. Where no application is made under Rules 89 to, 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. This rule is subject to the proviso that the court shall not confirm the sale until the final disposal of any claim to or any objection to the attachment of the property. Rule 94 states that where a sale of immoveable 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. Section 65 states that where immoveable 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. Thus it is clear that court auction sale becomes absolute only on confirmation and once the sale has become absolute, title shall be deemed to have vested in the purchaser from the time of the sale. While it is the duty of the purchaser to provide necessary stamp required for the certificate it is the duty of the court to grant certificate. Sale certificate is not a title deed, it is only a document evidencing title.
11. While Rule 95 relates to order being passed for delivery of possession in the occupancy of the judgment-debtor, rule 96 deals with case where property sold is in the occupancy of a tenant. Relevant portion of rule 95 reads thus:
“Where the immoveable property sold is in the occupancy of the judgment-debtor……………. and a certificate in respect thereof has been granted under rule 94, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser,…………”
12. Rule 96 also is on the same lines. Rule 95 does not lay down when an application is to be made for delivery. It only lays down when the court has to order delivery. The words “where the immoveable property sold” in rule 95 apply to situation where sale which has taken place has been made absolute. As long as sale is not made absolute, auction purchaser obviously has no right to apply for delivery. The court can order delivery when three conditions are satisfied, namely, the sale is made absolute, certificate has been granted under Rule 94, and there is an application of the purchaser. Reference to “application of the purchaser” would only mean that the court cannot suo motu order delivery. There is nothing in the rule to indicate that grant of certificate under rule 94 is also a pre-condition for filing application for delivery, though grant of certificate is a pre-condition for the court ordering delivery. Article 134 of the Limitation Act, 1963 prescribes period of limitation for an application for delivery of possession by the purchaser of immovable property at court auction sale. The period of limitation prescribed is one year and time begins to run when the sale becomes absolute. If the intention of the legislature was that the time should begin to run I only from the date of grant of certificate, the third column could very well have stated “when the sale certificate is granted”. Sale certificate can be granted only after sale is made absolute, Though sale certificate is granted some time after the date on which sale is made absolute, it shall bear the date on which sale became absolute. Title shall be deemed to have vested from the date of sale and not from the date when sale is made absolute, nor from the date of grant of sale. Legislature had the choice of prescribing the date of commencement of period of limitation as either the date on which sale becomes absolute or the date on which sale certificate is granted and chose the former and not the latter. The court cannot add to or subtract from the prescription made by the legislature. The court auction purchaser when the sale has become absolute, has to file an application for delivery within one year from the date on which sale became absolute and without waiting for the grant of sale certificate, though before ordering delivery court has to wait for grant of sale certificate. I am in respectful agreement with the view taken by the High Courts of Calcutta, Nagpur and Madras.
13. I agree with the view taken by the lower court that the application for delivery in the instant case having been filed beyond the period of one year from the date on which sale has become absolue is barred by limitation. The revision petition is accordingly dismissed, but in the circumstances without costs.
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