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Gauhati High Court · body

1992 DIGILAW 79 (GAU)

Nihar Ranjan Sen v. Assam Financial Corporation

1992-04-10

J.SANGMA, R.K.MANISANA SINGH

body1992
R. K. Manisana, J - The Civil Revision No.2 of 1988 and MA (F) No. 81 of 1988 have been filed against the order of the District Judge, Kamrup at Guwahati made on 15.12.87 in Misc. Case No.55 of 1969. Both the revision and appeal have been filed by way of abundant caution. They are heard together and disposed of by a common judgment. 2. Facts, - The decree-holder Assam Financial Corporation obtained an exparte decree. In the execution of the decree, land in question was put to auction sale on 11.8.81. With the permission of the Court, the land was purchased by the decree holder. The sale was confirmed on 18.11.81. The judg­ment-debtor deposited required stamp papers on 26.5.86 and sale certificate was issued under Order 21 Rule 94, CPC on 29.5.86. In the original Misc. Case No. 55 of 1969, the judgment-debtor made an application on 8.7.86 praying for refusing delivery of possession of the land to the decree-holder (purchaser) stating, inter alia, that the sale was illegal for there was irregularity and/or fraud in publishing and conducting it, and that the delivery of possession of the land sold was barred by Article 134 of the Limitation Act. On 28.8.86, the decree-holder filed Misc. Case No.293 of 1986 for delivery of possession of the land purchased by it. The learned District Judge rejected the prayer of the judgment-debtor on the ground that there was no irregul­arity or fraud in publishing or conducting it; and that the records were misplaced, and as such, the decree holder cannot be held responsible for any delay. Hence this petition. It may be noted here that the application for delivery of possession (Misc. Case No 293 of 1986) has not been disposed of. 3. The only question which arises for consideration is whether delivery of possession of the land would be barred by Article 134 of the Limitation Act. Under Article 134 of the Limitation Act, the limitation for delivery of possession to the purchaser of the immovable property at a sale in execution of a decree is one year from the date on which the sale becomes absolute. The question then is,- When the sale became absolute? Under Article 134 of the Limitation Act, the limitation for delivery of possession to the purchaser of the immovable property at a sale in execution of a decree is one year from the date on which the sale becomes absolute. The question then is,- When the sale became absolute? Order 21, Rule 92 (1), CPC, provides: "Where no application is made under Rule 89, Rule 90 or Rule 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. Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attach­ment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection." Rule 89 relates to application for setting aside sale on depositing in the Court the sum provided thereunder for payment to the purchaser and the decree-holder; Rule 90 is in respect of the application to set aside sale on the ground of irregularity or fraud. Rule 91 provides for making application by the purchaser to set aside sale on the ground that the judgment-debtor had no saleable interest in the property sold. The application for setting aside the sale shall made within two (2) months from the date of sale. 4. On a plain reading of Rule 92, it is clear that the sale becomes absolute when the sale is confirmed. The sale can be confirmed where there is no application challenging the sale either under Rule 89, or Rule 90 or Rule 91; or where such application is made and disallowed; or where any property is sold in execution of a decree pending final disposal of any claim to, or any objection of attachment of, such property, after final disposal of such claim or objection. This being the position of law, if the Court confirms the sale before an application is made challenging the sale, or without notice of any application pending for final disposal of any claim to, or objection to attachment of, such property, the confirmation will be effective on disallowing the applications and thereupon the sale becomes absolute. 5. Mr. This being the position of law, if the Court confirms the sale before an application is made challenging the sale, or without notice of any application pending for final disposal of any claim to, or objection to attachment of, such property, the confirmation will be effective on disallowing the applications and thereupon the sale becomes absolute. 5. Mr. BK Goswami, learned counsel for the respondent, has contended that the sale becomes absolute on the date when sale certificate is issued, or in any event, in the present case, when sale becomes absolute would depend upon the result of the present appeal and revision. 6. Order 21, Rule 94 provides that, where a sale of immovable property becomes absolute, the Court shall grant a certificate specifying the properties sold and the name of the person who at the time of sale is declared to be the purchaser, and that such certificate shall bear the date on which the sale became absolute. Therefore, for the purpose of Article 134 of the Limitation Act, the sale certificate is not material as the certificate is to be issued only after the sale has become absolute. That apart, the sale certificate is nothing but a document of title. In that view of the matter, the contention of Mr. Goswami that sale becomes absolute when the sale certificate is issued cannot be accepted. 7. The next question which arises for consideration is whether, when the sale became absolute, in the present case, would depend upon the result of the present revision and appeal. Mr. Goswami has argued that the judgment-debtor made the application on 8.7.86 challenging the sale on the ground of irregularity or fraud in publishing or conducting the sale while praying for refusing to deliver possession to the decree-holder. That application was rejected by the District Judge by holding that sale was valid and the delivery of possession of the land sold was not barred by limitation law. Therefore, the sale will become absolute only after the final decision of this Court, if the appeal and revision are disallowed, although the Court had confirmed the sale on 18.11.81. The learned counsel had relied on a decision of this Court reported as Krishna Dutta Buzarbaruah vs. Sindhuram Choudhury, AIR 1950 Assam 89. Therefore, the sale will become absolute only after the final decision of this Court, if the appeal and revision are disallowed, although the Court had confirmed the sale on 18.11.81. The learned counsel had relied on a decision of this Court reported as Krishna Dutta Buzarbaruah vs. Sindhuram Choudhury, AIR 1950 Assam 89. In that case a Division Bench of this Court has held that, when the formal order of confirmation of a sale in execution is challenged, the order of confirmation itself becomes in question and, therefore, the sale becomes absolute not on the date when the formal order of confirmation was passed but on the termination of the litigation commenced by the judgment-debtor for having the sale set aside. We are not quarelling with the pro­position laid down by this Court. But the "question is whether the principle is applicable to the present case. The application under Rule 89, 90 and 91, for setting aside the sale is to be filed within two (2) months from the date of the sale, as already stated. There was no application challenging the sale either under Rule 89, 90 or 91 within the said 2 months and hence, the Court was bound to confirm the sale. In the petition filed by the judgment-debtor, the judgment-debtor has prayed for refusing the delivery of possession of the land only, although he has stated in the petition about irregularity or fraud in publishing or conducting the sale. The petition was filed after about 4 years of the sale, or the confirmation of the sale, after expiry of the period of limitation. There was no application for condonation of delay. Even if the application is treated as a composite for setting aside the sale and for resisting delivery of possession, the Court has no jurisdiction to entertain application for setting the sale aside as it was barred by limitation and, therefore, any finding of the District Judge about the fraud or irregularity will be of no consequence. The learned counsel for the judgment-debtor has stated at the bar that the judgment-debtor had not challenged the sale, and statement made in respect of irregularity or fraud in publishing or conducting the sale was made by way of introduction which would be made clear by the prayer made in the petition. The learned counsel for the judgment-debtor has stated at the bar that the judgment-debtor had not challenged the sale, and statement made in respect of irregularity or fraud in publishing or conducting the sale was made by way of introduction which would be made clear by the prayer made in the petition. In that view of the matter, the present application is for resisting delivery of possession and not with regard to the validity of the sale. In that view of the matter, sale became absolute on 18.11.81 and time for delivery of possession of the land in question would start running from 18.11.81. 8. With regard to the finding of the District Judge that the record was misplaced and hence the decree-holder could not be responsible for any lapse, once time begins to run it cannot be stopped unless there is provision under the limitation law to halt or extend the limitation prescribed by law. We are, however, not expressing our opinion whether misplace of record will halt the running of time or extend the limitation as Misc. Case No. 293 of 1986 has not been disposed of. 9. In the result, the appeal and revision are allowed and the order dated 15.12.87 made by the District Judge is set aside. The District Judge shall dispose of Misc. Case No. 293 of 1986 in the light of the observations above and the application of judgment-debtor for refusing to delivery of possession to the decree-holder shall be treated as an objection filed in Misc. Case No. 293 of 1986. No costs.