joseph v. The cannanore co-op. land mortgage bank ltd.
1989-02-15
RADHAKRISHNA MENON
body1989
DigiLaw.ai
Judgment :- 1. Petitioner is the respondent in E. P. 16/88, an application filed by the auction purchaser for delivery of the property in dispute. The sale certificate was issued on 20-4-1985. Thereafter in 1988, that is, after a lapse of three years, the date on which the sale certificate was issued the respondent filed the above E. P. under 0.21 R.95 read with S.17 of the Cooperative Land Mortgage Banks Act, for delivery of the property. The petitioner resisted the said petition. The mam ground urged in this regard is that the petition is barred by limitation. 2. The court below after considering the various aspects of the case has rejected the above plea of the petitioner by the order under challenge. The learned counsel for the petitioner argues that the execution petition filed after a lapse of three years of the date on which the sale certificate was issued is barred by limitation. In support of this contention, be made reference to Art.134 of the Limitation Act. Art.134 of the Limitation Act provides that any petition for delivery of possession by a purchaser of an immovable property at a sale in execution of a decree shall be filed within one year from the date on which the sale becomes absolute. The sale in this case became absolute on 20-4-1985. The petition therefore should have been filed within one year therefrom. The court below though took cognisance of this argument, was of the view that the execution petition is one that falls under Art.136 of the Limitation Act. The period of limitation prescribed by this Article is 12 years. In support of this view, the court below has relied on a decision of this court in Varghese v. Muthukulam Service Co-operative Society (1980 KLT. 400). 3. This court in that case was considering the claim of an auction purchaser within the meaning of R.84 of the Co-operative Societies Roles 1969, for delivery of the property pursuant to the sale certificate issued in his name.
400). 3. This court in that case was considering the claim of an auction purchaser within the meaning of R.84 of the Co-operative Societies Roles 1969, for delivery of the property pursuant to the sale certificate issued in his name. Construing the said Rule, this court held thus: "The Rule further provides that the court of competent jurisdiction shall proceed in the manner it is allowed to proceed in a case of a decree for possession if given to the purchaser: This is the only Rule under which the auction-purchaser is a sale conducted by the Registrar can come to a civil court for help to get possession of the property. It is this Rule that has been invoked by the auction-purchasers in all these cases, though in some they have not in so many words quoted the Rule under which they have moved the Civil Court. As the Rule provides that the auction-purchaser must be treated as a holder of a decree for possession, Art.134 of the Limitation Act has no application. That applies only to the auction-purchaser in a sale conducted by the civil court to apply for possession through a civil court and the starting point of limitation is one year from the date when the sale became absolute. That is not the case here: Hence Art.134 has no application" (emphasis supplied) As already noted the application of the respondent for delivery of the property pursuant to the sale certificate is one filed under S.17 of the Cooperative Land Mortgage Banks Act read with 0.21 R.95 CPC. The wordings of this Section are different from the wordings of R.84 of the Co-operative Societies Rules. Here the words relevant to be considered are "on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom be may appoint to receive delivery on his behalf, in possession of the property". Under R.84 what is stated is that the auction purchaser must be treated as a bolder of a decree for possession. A bolder of a decree for possession is different from the auction purchaser entitled to delivery of the property, within the meaning of S. I? of the Act.
Under R.84 what is stated is that the auction purchaser must be treated as a bolder of a decree for possession. A bolder of a decree for possession is different from the auction purchaser entitled to delivery of the property, within the meaning of S. I? of the Act. It should in this connection be remembered that such an auction purchaser, that is the auction purchaser coming under S.17 of the Act, to get delivery of the property pursuant to the sale certificate need not initials proceedings contemplated under Art.136; it is enough if he applies for delivery of the property under 0.21 R.95. That is not the case with the auction purchaser within the meaning of R.84 of the Co-operative Societies Rules. The auction purchaser in the said Rule is equated with a decree-holder and therefore the proceedings initiated by him to recover possession of the property pursuant to the sale certificate, as observed by this court, is one falling under Art.136. 4. The above ruling of this court relied on by the court below to nonsuit the petitioner therefore has no application to a case which falls under S.17 of the Act. The auction purchaser in order to get delivery of the property needs file a petition, as already noted, under 0.21 R.95 CPC. Such a petition in my view, is one that fails under Art.134 of the Limitation Act. If that be so, such an application for delivery requires to be filed within one year of the date on which the sale become absolute. The petition from out of which this revision arises therefore is barred by limitation. The order under challenge accordingly is set aside. The CRP. is allowed to the extent indicated above.