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2014 DIGILAW 490 (AP)

Dachepalli Kondalu v. Peddinth Chandraskhar

2014-03-28

L.NARASIMHA REDDY

body2014
Judgment : The 1st respondent filed O.S.No.36 of 2001 in the Court of the Junior Civil Judge, Piduguralla, against the 2nd respondent for recovery of certain amount. The suit was decreed, and after decree became the final, the 1st respondent filed E.P.No.72 of 2003. An item of property, being residential house, in Piduguralla Village, was attached. At that stage, the appellant herein a third party to the suit, filed E.A.No.758 of 2004, stating that she purchased the property through a Sale Deed, dated 12.02.2001 from the father of the 2nd respondent, and that she is in possession and enjoyment of the same. The link document, dated 06.03.1969, was said to have been handed over to her, by the vendor. The said application was dismissed. Thereupon, the 1st respondent filed O.S.No.18 of 2006 in the Court of the Senior Civil Judge, Gurajala, for declaration of her title, in respect of the schedule property and for consequential perpetual injunction. An interim order is also said to have been obtained in the suit. The suit however was dismissed on 28.10.2010. During the pendency of O.S.No.18 of 2006, the property was brought to sale and the appellant emerged as the highest bidder. He filed E.A.No.19 of 2008 under Rule 95 Order XX1 CPC for delivery of possession thereof. At that stage, the 3rd respondent filed E.A.No.42 of 2009 under Rule 97 Order XX1 CPC, raising several objections to the E.A.No.19 of 2008, and asserting her rights over the property. She pleaded that the petition schedule property was not owned by the 2nd respondent, by the time, it was brought to sale in the execution, and at any rate, her absolute rights over the property cannot be defeated. An objection was also raised as to the maintainability of E.A.No.19 of 2008, particularly, from the point of view of limitation. It was urged that the sale was confirmed on 01.12.2004, whereas, the application for delivery of the possession was filed in the year 2008. Through its order, dated 24.09.2012, the executing Court dismissed E.A.No.42 of 2009. Aggrieved by that, the 3rd respondent filed A.S.No.9 of 2012 in the Court of the Senior Civil Judge, Gurajala. The appeal was allowed through its order, dated 16.04.2013. Hence, this Second Appeal. Sri N. Subba Rao, learned counsel for the appellant, submits that the view taken by the lower appellate Court cannot be sustained in law. Aggrieved by that, the 3rd respondent filed A.S.No.9 of 2012 in the Court of the Senior Civil Judge, Gurajala. The appeal was allowed through its order, dated 16.04.2013. Hence, this Second Appeal. Sri N. Subba Rao, learned counsel for the appellant, submits that the view taken by the lower appellate Court cannot be sustained in law. He submits that once E.A.No.758 of 2004 filed by the 3rd respondent under Rule 58 Order XX1 CPC, was dismissed, it is not competent for her to file E.A.No.42 of 2009 under Rule 97 Order XX1 CPC. He submits that though the sale of the schedule property was confirmed on 01.12.2004, the application for delivery of possession could not be filed immediately on account of pendency of O.S.No.18 of 2006, and that, it cannot be said that E.A.No.19 of 2008 barred by limitation. Sri B. Chinnapa Reddy, learned counsel for the 3rd respondent, on the other hand, submits that the parameters for adjudication of claims in a petition filed under Rule 58 on the one hand, and Rule 97, on the other hand, under Order XX1 CPC, are totally different. He submits that though in the applications filed under both the provisions, the right, title and interest of a claimant, can be adjudicated, the plea of limitation in filing the application for delivery of possession can be raised as a specific ground, only in an application filed under Rule 97. Learned Counsel submits that assuming that the order passed in the application filed under Rule 58 Order XX1 CPC became final, it does not operate a bar for raising objection, as to the limitation, in the application filed under Rule 95 of Order XX1 CPC. He contends that the lower appellate Court has taken correct view of the matter. The original suit that gave rise to the present set of the proceedings was filed by the 1st respondent against the 2nd respondent. It is in the process of execution of the decree, that the appellant on the one hand, and the 3rd respondent on the other hand, came into picture. While the appellant emerged as the highest bidder, the 3rd respondent claimed rights in respect of the property, and it is brought to sale. It is in the process of execution of the decree, that the appellant on the one hand, and the 3rd respondent on the other hand, came into picture. While the appellant emerged as the highest bidder, the 3rd respondent claimed rights in respect of the property, and it is brought to sale. The executing Court framed the following point for its consideration: 1) whether the petitioner is entitled to file this petition U/o 21 R.97 R/w 101 of C.P.C., as previously she filed a claim petition U/o 21 R.58 of C.P.C. dismissed for default and also when the petitioner filed a separate suit against the respondents herein for declaration of her right, title and interest in respect of the E.P. scheduled property and also the same dismissed for default without taking the steps in the suit OS No.18/2006 and the claim petition E.A758/04 in EP 72/03 is maintainable or not? No oral or documentary evidence was adduced by the parties and the application was dismissed. The question of limitation was not dealt with in E.A.No.42 of 2009, obviously because, it is raised in the form of a defence in E.A.No.19 of 2008. The 3rd respondent filed A.S.No.9 of 2012. The lower appellate Court framed the following points for its consideration: 1) Whether the delivery of property in pursuance of the sale certificate is within limitation, if so, what are the consequences? 2) Whether the appellant is entitled to resist the execution proceedings when Field Assistant visited the property for delivery in pursuance of sale certificate issued in favour of the 3rd respondent? 3) In a way, it can be said that the lower appellate Court concentrated more on the maintainability of E.A.No.19 of 2008 than the legality or otherwise of E.A.No.42 of 2009, and the appeal was allowed. The substantial questions of law that arises for consideration in this appeal are: a) Whether the dismissal of application filed under Rule 58 of Order XX1 CPC could operate as resjudicata for filing the application under Rule 97 of Order XX1 CPC? b) Whether the application for delivery of possession of the property in execution of sale can be filed beyond one year form the date on which, the sale became absolute? The brief background of the dispute as between the parties has been presented in the preceding paragraphs. b) Whether the application for delivery of possession of the property in execution of sale can be filed beyond one year form the date on which, the sale became absolute? The brief background of the dispute as between the parties has been presented in the preceding paragraphs. The suit field by the 1st respondent against the 2nd respondent for recovery of the amount was decreed in the year 2003, and after the decree became final, the 1st respondent filed E.P.No.72 of 2003. When the property was put to sale, the 3rd respondent filed E.A.No.758 of 2004 under Rule 58 Order XX1 CPC, by asserting title. She pleaded that the property was purchased from the father of the Judgment Debtor, in the year 2001. That application however was dismissed on 18.11.2005. The record discloses that the sale was confirmed on 01.12.2004 and the sale certificate was issued on 12.12.2005. The 3rd respondent filed O.S.No.18 of 2006 for declaration of title and other reliefs in the Court of the Senior Civil Judge, Gurajala, and that was dismissed on 18.01.2010. The purport of the interim orders passed in the suit is not before this Court. The fact remains that the appellant filed E.A.No.19 of 2008 for delivery of possession. Apart from resisting that application, the 3rd respondent filed E.A.No.42 of 2009 under Rule 97 Order XX1 CPC. The appellant opposed E.A.No.42 of 2009 by raising a plea of resjudicata. It is no doubt true that there is substantial similarity, as regards the adjudication of applications, filed under Rule 58 on the one hand, and the applications filed under Rule 97 or 99 on the other hand of Order XX1 CPC. Both the applications are filed, invariably by the persons, other than the J.Drs, but claiming interest over the property, which is the subject matter of the execution petition. Distinction between them, however is that an application under Rule 58 is filed by a third party, after an item of property is attached, but before it is brought to sale, whereas the applications under Rules 97 and 99, are filed after the property is brought to sale. Further distinction as between the applications filed under Rules 97 and 99 is that while the former is filed before the delivery of the property is affected, the latter is filed after the possession is delivered. Further distinction as between the applications filed under Rules 97 and 99 is that while the former is filed before the delivery of the property is affected, the latter is filed after the possession is delivered. All the three applications are required to be adjudicated as though they are independent suits, as it is evident from Sub Rule (2) Rule 58 and Rule 101 of Order XX1 CPC. The point of distinction however is that a person who files an application under Rule 58 can succeed only if he establishes his title and interest over the property, whereas, an application under Rule 97 or 99 can be maintained, even by a person, who does not hold title, such as a tenant. Secondly, the question of limitation stipulated under Article 134 of the Schedule to Limitation Act, is available to the applicants under Rule 97 or 99 of Order XX1 CPC, to resist the application filed by the auction purchaser, for delivery of possession, whereas, such a facility does not exist in the context of an application under Rule 58. These are only illustrative. This much, however can be said that, once the question of title vis-à-vis E.P. schedule property was decided in an application filed under Rule 58 of Order XX1 CPC, and the decree passed therein, has become final, the same party cannot be permitted to agitate the same in application filed under Rule 97 or 99 of Order XX1 CPC. In the instant case, the lower appellate Court did not pronounce upon the title of the 3rd respondent vis-à-vis the schedule property. It has only taken the view that the application field by the appellant under Rule 95 of Order XX1 CPC, for delivery of possession is barred by limitation. The 1st question of law is answered accordingly. The 2nd question of law is about limitation. It has already been mentioned that the auction sale was confirmed on 01.12.2004, and one year thereafter, the sale certificate was issued. Limitation Act prescribes the period within which an application for delivery of possession of property purchased in an execution sale, must be filed. Article 134 of the Schedule to the Act prescribes one year as limitation and stipulates that the starting point, as the date on which, the sale became absolute. Limitation Act prescribes the period within which an application for delivery of possession of property purchased in an execution sale, must be filed. Article 134 of the Schedule to the Act prescribes one year as limitation and stipulates that the starting point, as the date on which, the sale became absolute. More often than and efforts are made by the parties to reckon the limitation in this behalf, from the date, on which, the sale certificate is issued. That however, is not correct. Unless, the auction purchaser is able to show that he was prevented through the order passed by the Court of competent jurisdiction, from filing the application for delivery of possession within one year, from the date on which the sale became absolute, he cannot maintain the same, thereafter. In the instant case, though an attempt is made to impress this Court that the pendency of O.S.No.8 of 2006 filed by the 3rd respondent was an impediment, the very fact that E.A.No.19 of 2008 was filed even during the pendency of the suit, discloses that the plea of the appellant is not correct. One important factor, which needs to be taken into account is that the limitation for filing the application under Rule 95 of Order XX1 CPC expired by the time O.S.No.18 of 2006 was filed. Therefore, this question is also answered against the appellant. The Second Appeal no doubt deserves to be rejected. However, the appellant cannot be denied the amount deposited by him, and apart from that, he needs to be compensated further. Though the Decree Holder may have withdrawn the decretal amount from the consideration deposited by the appellant, it shall be the duty of 3rd respondent to arrange for the same, for being paid to the appellant. However, the appellant cannot be denied the amount deposited by him, and apart from that, he needs to be compensated further. Though the Decree Holder may have withdrawn the decretal amount from the consideration deposited by the appellant, it shall be the duty of 3rd respondent to arrange for the same, for being paid to the appellant. Hence, the Second Appeal is partly allowed upholding the decree and judgment passed by the lower appellate Court in A.S.No.9 of 2012, but directing that – a) the 3rd respondent shall be under an obligation to pay interest on the sale amount deposited by the appellant @ 9% p.a., from the date on which it was deposited; till today b) if the sale amount in its entirety or part has been withdrawn by respondent Nos.1 and 2 in parts, the 3rd respondent shall be under obligation to deposit the amount so withdraw, without prejudice to her right to recover such amount from the concerned persons; c) the 3rd respondent shall also be under obligation to pay the poundage charges contemplated under Rule 89 of Order XX1 CPC. The deposits mentioned in classes a, b and c shall be made within three (03) months from today. In default, the application E.A.No.42 of 2009 shall stand dismissed, and it shall be open to the appellant to seek delivery of possession. There shall be no order as to costs.