Mukerji, J.:— The question which arises for decision in these appeals is whether an application for delivery of possession by an auction-purchaser under O. 21, R. 95 of the CPC has to be made within three years from the date of confirmation of the sale or from any later date. It was contended in the Court below on behalf of the respondent auction-purchaser that the time should run against him from the date of issue of the sale certificate, and the said Court has upheld that contention.
2. The sales in these cases took place on 10th February 1923. Applications to set them aside were made by the judgment-debtor on 24th February 1923, but were dismissed on 15th April 1924. On 22nd April 1924 the sales were confirmed, and draft sale certificates were prepared. The judgment-debtor appealed against the order refusing to set the sales aside
3. These appeals were eventually on 17th March 1927. In the beginning of May 1928 the auction purchasers supplied the stamps for the sale certificates, which were then issued on 19th May and 5th June 1928 respectively. The applications under O. 21, R. 95 of the CPC, were made on 10th September 1928.
4. There can be no question that Article 180, Sch. 1, Limitation Act, is the article to be applied. Under that article the period of three years prescribed would run from the date when the sale becomes absolute. O. 21, R. 92 of the CPC, says that on the sale being confirmed, it shall become absolute. It is not possible to get over the position that time would run from the date of confirmation of the sale. This view has been taken in two unreported decisions of this Court which directly cover the point, Neckbar v. Prahash Chandra . A.I.R 1930 Cal. 86 and M.A No. 148 of 1927, decided on 11th February 1929. 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 O. 21, R. 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 data the day on which the sale became absolute.
5. Several arguments have advanced before us to take a different view. Hardships that may sometimes result, or be supposed to result, have been pointed out; but we do not feel pressed by them. We do not see why the auction-purchaser should net make the application for delivery of possession, so long as nothing in the shape of a definite bar stands in his way. It has been argued that the sale becomes absolute on the appeal in the proceedings for setting it aside being disposed of. We cannot agree in this view. It has then been pointed out that O. 2, Rr. 95 and 96, contemplate the existence of a certificate granted under O. 21, R. 94, and make the nature of the order to be passed dependent on the terms of such certificate. 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. Besides on the sale becoming absolute it is more or less within the power of the auction-purchaser to get the sale certificate as soon as he wants, because the intention of the legislature as expressed in the wording of O. 21, R. 94, is to issue the certificate with all convenient speed. In the present case, as in many other cases that arise, the auction-purchasers themselves delayed the grant of the certificates by not putting in the requisite stamps earlier than in May 1928. Lastly it has been urged that the delay should be excused. So far as this contention is concerned, we are unable to assist the appellants; because neither S. 5 nor Section 14 of the Limitation Act, which they looked to, would apply to the case. The appeals are allowed. The order complained of is set Aside. The Applications Under O. 21, R. 95, Will Be Dismissed. No Costs.
Mitter, J.:— I agree.
K.N/R.K
6. Appeals allowed.