1. This is a Letters Patent appeal against the decision of Mudholkar J. The point that arises for consideration is simple. The respondent's husband was a decree-holder in execution of whose decree the house in the case was sold and the sale became absolute in favour of the respondent's husband on 14-2-1940. The respondent made an application on 12-11-1941 for possession of the house. The application was not accompanied by the certificate contemplated by O. 21, R. 94 of the CPC, and it appears that no such certificate had been obtained. On 8-4-1943, the respondent applied for the certificate. That was more than three years after the sale became absolute. The contention of the judgment-debtors in this appeal is that the respondent not being in possession of a certificate was incompetent to apply for possession regard being had to the words of O. 21, Rr. 94 and 95 and by the time she obtained the certificate the period of limitation had expired. They say that the application ought, therefore, to have been dismissed.
2. Article 180, Limitation Act, by which this matter is governed provides as follows:
“180. By a purchaser of immoveable property at a sale in execution of a decree for delivery, of possession.
3 years.
When the sale becomes absolute;”
3. This article makes no reference to the certificate.
4. 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.
5. The rights of the purchaser at a Court sale do not commence when the certificate is granted. Under S. 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. In dealing with the vesting of property in the auction-purchaser Mulla in his Code of Civil Procedure (1941) has correctly pointed out the interrelation of O. 21, Rr. 90-96 and S. 65 of the Code. It is stated by him at page 264:
“In the case of a private sale of immovable property, the property vests in the purchaser from the time when the deed of sale is executed. The reason is that a voluntary sale becomes absolute on execution and delivery of the deed by the vendor. In the case, however, of a Court sale, the property does not vest in the purchaser immediately on the sale thereof. The reason is that a compulsory sale does not become absolute until some time after the sale. A period of at least thirty days must expire from the date of sale before the sale can become absolute. During that period the sale is liable to be set aside at the instance of the judgment-debtor on the ground of irregularity in publishing or conducting the sale, or on deposit by him in Court of the amount specified in the sale proclamation together with a percentage on the purchase money by way of compensation to the purchaser (O. 21, Rr. 89-90). The application by the judgment-debtor to set aside the sale in either of these two cases must be made within 30 days from, the date, of sale. Where no such application is made, the Court must make an order confirming the sale, ‘and it is upon such confirmation that the sale becomes absolute’ (O. 21, R. 92). After the sale has become absolute, a certificate is granted by the Court to the purchaser which is called a certificate of sale (O. 21, R. 94). Such certificate bears as date the day on which the sale became absolute. It is only when the sale becomes absolute that the property sold vests in the purchaser — ‘Vishnu v. Yusuff’, AIR 1925 Bom 483 (A). But though the property does not vest in the purchaser until the sale has become absolute, when it does vest in him it ‘shall’ be deemed to have vested on the sale becoming absolute ‘from the time when it was sold’. The vesting of the property is thus made to relate back to the date of sale — ‘Abdul Rahman v. Fateh Narain’, AIR 1926 Oudh 189 (B), and the auction-purchaser is entitled to sue for profits from the date of the purchase — ‘Shyam Lal v. Sunder Lai’, AIR 1937 All 661 (C).”
6. These propositions are well supported by authority.
7. Now the certificate in such cases is not a title deed. It is merely evidence of title. Article 180, Limitation Act, provides its own conditions. It is not made subservient to the provisions of O. 21, Rr. 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. In the present case the application complied with all the requirements of Article 180, Limitation Act. The application being proper could not be dismissed on the ground of limitation. The Court asked for evidence of title. The certificate whenever issued would bear the date on which the sale became absolute. Such a certificate would entitle the respondent to obtain possession under R. 95 of O. 21. 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. The order passed by the learned Judge is, therefore, correct and we see no reason to interfere.
9. The appeal fails and is dismissed with costs.
10. Appeal dismissed.