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2020 DIGILAW 1030 (KER)

Danish Varghese v. Jancy Danish

2020-12-03

A.M.SHAFFIQUE, GOPINATH P., SUNIL THOMAS

body2020
ORDER : The Order of the Court was delivered by Sunil Thomas, J. 1. The short legal issue referred to Full Bench by the order of Division Bench is whether an auction purchaser in a Court sale is entitled to file a separate suit for declaration of title and recovery of possession of the auctioned property based on the sale certificate issued by the Execution Court, after the period of limitation of one year from the date when the sale became absolute, as provided under Art.134 of the Limitation Act. 2. Brief facts are essential for a proper consideration of the issue involved: The appellant is the respondent/husband in O. P. No. 1377/2010 of the Family Court, Alappuzha. He had married the respondent herein. Later, the relationship got strained leading to the institution of matrimonial proceedings. Respondent herein had filed O. P. No. 473/1999 before the Family Court, Ernakulam for recovery of patrimony and gold ornaments. It was allowed after trial. E. P. No. 7/2006 was filed for execution of the above order, which was transferred to Family Court, Alappuzha, since the property proceeded against was situated within the jurisdiction of that Court. One third undivided right held by the appellant in the attached property was brought for sale. It was bid by the respondent on 19/05/2008 and sale was confirmed on 06/08/2008. Sale certificate was issued on 13/12/2009. E. A. No. 42/2008 filed by the appellant to set aside sale was dismissed by order dated 19/12/2008. Sale became absolute on 19/12/2008. It was later revealed that the appellant/judgment debtor had executed release deed dated 17/12/2010 in favour of his mother and brother, releasing his rights over the above property. On 11/01/2010, E. A. No. 15/2010 was filed by the respondent for delivery of one third undivided right sold in her favour as the auction purchaser. The above application was dismissed on 06/08/2010 on the ground that it was filed beyond the time prescribed under Art.134 of the Limitation Act, 1963. That order has become final in the absence of any challenge. 3. On 29/12/2010, the respondent herein filed O. P. No. 1377/2010 before the Family Court, Alappuzha seeking recovery of possession of the property assigned to her by the sale certificate. That order has become final in the absence of any challenge. 3. On 29/12/2010, the respondent herein filed O. P. No. 1377/2010 before the Family Court, Alappuzha seeking recovery of possession of the property assigned to her by the sale certificate. The relief sought in the above petition was to pass a decree of recovery of possession directing the appellant to put the respondent in possession and if he fails to do so, to allow the recovery of possession. The appellant herein raised an objection that the petition was hit by Art.134 of the Limitation Act, 1963, which prescribed one year period for seeking delivery of the property sold in court auction, reckoned from the date when the sale became absolute. The above petition was allowed by the Family Court, Alappuzha by order dated 17/07/2012. It was held by the Trial Court that limitation under Art.134 of the Limitation Act starts from the date of confirmation of sale, though title effectively passes to the auction purchaser under Order XXI R.92 of the Code of Civil Procedure. It was held that in such cases, if an application for delivery is not filed within the period prescribed under Art.134 of the Limitation Act, remedy open was to sue for possession based on title. To reach the above conclusion, the learned Family Court Judge placed reliance on the judgment of the Supreme Court in Balakrishnan v. Malaiyandi Konar (2006 (1) KLT (SC)) wherein it was held that the decree holder who fails to file application for delivery in terms of Art.134 of Limitation Act was entitled for recovery of possession. This is challenged by the appellant in the Matrimonial Appeal. 4. When the Matrimonial Appeal came up before a Division Bench to which one among us (A. M. Shaffique, J.) was a party, it was noticed by the Division Bench that Honourable Supreme Court in K. R. Lakshminarayana Rao v. New Premier Chemical Industries, (2005) 9 SCC 354 , had held that if the decree holder failed to file an application for possession and delivery of the property sold in execution in terms of Order XXI R.95 CPC, within a period of one year, a separate suit was not maintainable. This view was contrary to the decision in Malaiyandi Konar's case (supra). This view was contrary to the decision in Malaiyandi Konar's case (supra). In Malaiyandi Konar's case, Supreme Court had held that under Art.134 of the Limitation Act, the limitation period starts from the date of confirmation of sale and not when the sale certificate is issued under Order XXI R.94 of CPC. It was noticed by the Division Bench that K. R. Lakshminarayana Rao's case was followed by a Division Bench of this Court in Anjaneyan v. Abdul Razak ( 2008 (1) KLT 119 ). In Anjaneyan's case, reference was also made to an earlier decision of the Supreme Court in Manikayala Rao v. Narasimhaswami, AIR 1966 SC 470 wherein the Apex Court had observed that the right of the auction purchaser, in such circumstances, was to sue for partition of the property and to ask for allotment to him of that, which on partition, might be found to fall to the share of the coparcener whose share he had purchased. 5. Malaiyandi Konar's case had followed an earlier decision of the Apex Court in Pattam Khader Khan v. Pattam Sardar Khan and Another, (1996) 5 SCC 48 , in which Supreme Court had held that, if one person failed to file an application for delivery within the period prescribed under Art.134 of the Limitation Act, the law relegates him to the remedy of a suit for possession in a regular way. The Hon'ble Supreme Court had noted that Art.134 of the Limitation Act provided the right to the auction purchaser to ask for delivery of the property within the prescribed period from the date when sale become absolute and on his failure to avail such a quick remedy, relegates him to remedy of a suit for possession in a regular way. This decision was followed by a Single Bench of this Court in Aravindakshan Nair v. Binoy Kurian, 2017 (3) KLT 135 . 6. The Division Bench of this Court concluded that one set of judgments viz. Lakshminarayana Rao's case and Anjaneyan's case laid down propositions in favour of the appellant, whereas the law laid down in Pattam Khader Khan's case, Balakrishnan's case and also Aravindakshan Nair's case was in favour of the respondent. Noting the apparent conflicting views, the Division Bench felt that the matter needed to be settled by an authoritative pronouncement of the issue by a Full Bench. Noting the apparent conflicting views, the Division Bench felt that the matter needed to be settled by an authoritative pronouncement of the issue by a Full Bench. Accordingly, the matter has been referred to this Bench. Parties to the proceedings will hereinafter be referred to as 'the appellant' and 'the respondent' in accordance with their status in the matrimonial appeal. 7. Before answering the crucial question, it will be useful to refer to certain provisions of CPC which directly bear on the question. Order XXI R.82 to R.88 of CPC deals with court sale. R.89, R.90 and R.91 of CPC provide the three specific grounds on which the Court sale can be set aside. Order XXI R.92 of CPC deals with the stage when the sale becomes absolute. It provides that, where no application is made under R.89 or R.90 or R.91 of CPC, or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon sale shall become absolute. R.94 deals with the sale certificate issued to the purchaser. It provides that, where sale of immovable properly has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who, at the time of sale was declared to be the purchaser. Such a certificate shall bear the date on which the sale took place. R.95 provides that, where the immovable property sold is in occupancy of the judgment debtor or of some other person on his behalf or of some person claiming under a title created by the judgment debtor subsequent to the attachment of such property and a certificate in respect thereof has been granted under R.94, the Court, shall, on an application of the purchaser order delivery to be made by such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. Art.134 of the Limitation Act provides that the time limit for filing an application for delivery of possession is one year reckoned from the date when the sale becomes absolute. S.65 CPC provides that where Court sale has become absolute, the property shall be deemed to have vested in the purchaser, from the time when property was sold and not from the time when sale becomes absolute. 8. S.65 CPC provides that where Court sale has become absolute, the property shall be deemed to have vested in the purchaser, from the time when property was sold and not from the time when sale becomes absolute. 8. To consider the legal question that has been referred in its correct perspective, the two specific ancillary points are to be analyzed. A. What is the starting point of one year limitation period prescribed under Art.134 of the Limitation Act. B. Is it mandatory for the auction purchaser to take delivery of the property purchased by him in court auction. Point No. A: What is starting point for reckoning one year period under Art.134 of the Limitation Act? 9. Whether the limitation period provided under S.134 of the Limitation Act, 1963 (corresponding to Art.180 of the Limitation Act, 1908) would start from the date of sale, date of confirmation of sale, or the date when sale certificate was issued has drawn the attention of the Courts in various decisions. Under Order XXI, R.92, after sale, the Court shall pass an order confirming sale and thereupon sale becomes absolute. Certificate of purchase is issued thereafter. Under S.65 CPC, property will vest with purchaser when the property is sold and not from the time when sale becomes absolute. However, under Art.134, Limitation period starts when sale becomes absolute. These provisions, prima facie gives an indication that Court sale, vesting of title, sale becoming absolute and issuance of sale certificate are different stages of sale. 10. In Babulal Nathoolal and Others v. Annapurnabai, AIR 1953 Nagpur 215 , the Division Bench was called upon to consider the question whether the application for delivery of possession under Order XXI R.95 of CPC without enclosing the sale certificate under Order XXI R.94 of CPC was maintainable. It was held that sale certificate was not the title deed and it merely evidenced the title. It was held that, application for delivery of possession cannot be dismissed as barred by limitation, even if the sale certificate was obtained and filed after the period of limitation under Art.180 of the Limitation Act, 1908 has expired. It was held that, there was nothing in Order XXI R.95 of CPC that made it incumbent on the auction purchaser to file certificate along with his application. It was held that, there was nothing in Order XXI R.95 of CPC that made it incumbent on the auction purchaser to file certificate along with his application. It was held that, issuance of sale certificate was not the 'sine quo non' of filing the application under Order XXI R.95 of CPC. The implication was that the starting point of limitation was not the date when sale certificate was issued. 11. In Municipal Corporation of Delhi v. Pramod Kumar Gupta, ( AIR 1991 SC 401 , it was held that, title passes under the auction sale, by force of law and the transfer becomes final when an order under R.92 confirming it is made. By the certificate issued under R.94, the court was formally declaring the effect of sale and was not extinguishing or creating title. The object of issuance of such a certificate was to avoid any controversy with respect to the identity of the property sold and of the purchaser thereof and also the date when these all become absolute. 12. In Sagar Mahila Vidyalaya, Sagar v. Pandit Sadashiv Rao Harshe, AIR 1991 Supreme Court 1825, three Judges Bench of the Supreme Court opined that once an order under Order XXI R.92 CPC confirming the sale was made, the title of the auction purchaser relates back to the date of sale as provided under S.65 CPC. The title in the property thereafter vests in the auction purchaser and not in the judgment debtor. The issuance of sale certificate under Order XXI R.94 CPC in favour of the auction purchaser though mandatory, the granting of certificate was a ministerial act and not judicial. In the above decision, it was concluded that, on confirmation of sale under Order XXI R.92 CPC, the right, title and interest of the judgment debtor over the property sold, stands completely transferred in favour of the auction purchaser. 13. In the above decision, it was concluded that, on confirmation of sale under Order XXI R.92 CPC, the right, title and interest of the judgment debtor over the property sold, stands completely transferred in favour of the auction purchaser. 13. Privy Council in Chandra Mani Saha v. Anrajan Bibi, MANU.PR.0027/1934 held that the words "when the sale become absolute" in Art.180 of the Limitation Act, 1908, will have to be read along with Order XXI R.94 CPC and other relevant provisions of the Code, including those which relate to appeals from orders and whereas, there is appeal from order disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art.180 of the Limitation Act until the disposal of the appeal, even though the execution Court might have confirmed the sale, as he was bound to do so, when he decided to disallow the above mentioned application. Hence, the privy council held that the sale become absolute on the date when the appeal filed against the judgment dismissing the application was rejected by the High Court. 14. The above view was followed in subsequent decisions including the decision of Supreme Court in Sri. Ranga Nilayam Rama Krishna Rao v. Kandokori Cheillayamma ( AIR 1953 SC 425 ). In Sri. Ranga Nilayam Rama Krishna Rao's case, Supreme Court held that the three year period provided under S.180 of the Indian Limitation Act, 1908 for filing an application under Order XXI R.95 by the purchaser for delivery of possession has to be reckoned from the date of the order in the appeal, the High Court having, under CPC, the same power as that of the Trial Court. The words "when the sale becomes absolute" for the purpose of Art.180 was when the High court disposes of the appeal, if any. 15. In Pattam Khader Khan's case (supra), the issue that came up for consideration was the date of commencement of limitation period under S.134 of the Limitation Act, for filing an application under Order XXI R.95 CPC. It was held that, sale as provided under Art.134 of the Limitation Act, 1973, becomes absolute not on the date of issuance of the sale certificate. It need not always correspond to the date when the sale is made absolute by an order of the execution court under Order XXI R.95 also. It was held that, sale as provided under Art.134 of the Limitation Act, 1973, becomes absolute not on the date of issuance of the sale certificate. It need not always correspond to the date when the sale is made absolute by an order of the execution court under Order XXI R.95 also. Supreme Court held that Court sale was a compulsory sale conducted by or under the orders of the Court. The title of the property does not stand vested with the purchaser immediately on the sale unlike the case of private sale. The law requires that, it does not become absolute until some time after the sale, and the period of 30 days must expire from the date of sale before the sale can become absolute. In the meanwhile, the sale is susceptible of being set aside on any of the ground provided under Order XXI of R.89, R.90 and R.91 CPC. If no such application is made or such application if filed, is dismissed, the court shall be required to make an order confirming the sale and it is upon such confirmation that the sale become absolute in terms of the Order XX1 R.92 CPC. After the sale has become absolute, the certificate, as required, to be granted by the court to the purchaser, termed as the certificate of sale as provided under Order XXI R.94 CPC is issued. Such certificate bears the date on which the sale became absolute. On the sale becoming absolute, the property sold vests on the purchaser and vesting is thus made to relate back to the date of sale under the provisions of Order XXI CPC., it was held. 16. Proceeding further, the Supreme Court held that there was nothing in R.95 CPC to make it incumbent for the purchaser to file certificate along with the application. When the sale become absolute, it is obligatory on the court to issue such certificate. That may, for many reasons get delayed. Whether there is a failure to issue certificate or delay of action on behalf of the Court or inaction of purchaser in completing formalities are factors which have no bearing on the limitation prescribed for application under Art.134 of the Limitation Act. The purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. Whether there is a failure to issue certificate or delay of action on behalf of the Court or inaction of purchaser in completing formalities are factors which have no bearing on the limitation prescribed for application under Art.134 of the Limitation Act. The purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It was concluded that the issue of sale certificate was not the sine quo non of the application since both those matters were within the jurisdiction of the same court. Ultimately, the Supreme Court held that the starting point for limitation under S.134 of the Limitation Act for filing application under Order XXI R.95 CPC was the date when the sale becomes absolute viz, the date on which the title passed. The evidence of title in the form of sale certificate issued from the Court could always be supplied later to the Court to satisfy the requirements under Order XXI R.95 CPC. According to the Court, sale certificate was a formal acknowledgment of facts already accomplished stating as to what stood sold. Such act of the Court was pristinely a ministerial one and not judicial. 17. The above view was endorsed by the two Judges Bench of the Supreme Court in Balakrishnan v. Malaiyandi Konar's case (supra). Referring to Pattam Khader Khan's case, it was held that, limitation for the purpose of Art.134 starts from the date when the sale becomes absolute. Supreme Court noticed that, there can be a variety of factors conceivable for which delay can be caused in issuing the certificate. It was held that period of one year limitation under Art.134 of the Limitation Act, 1973 was a substitution of three year period prescribed under Art.180 of the Limitation Act, 1908. Referring to the above, a Division Bench of this Court in Anjaneyan's case (supra) held that, effective title to the goods passes when the sale becomes absolute on confirmation. 18. The law laid by the Privy Council in Chandra Mani Saha's case was followed in the decisions in Sri. Ranga Nilayam Rama Krishna Rao's case, Ganapat Singh's case, Pattam Khader Khan's case and Balakrishnan's case (Supra). 18. The law laid by the Privy Council in Chandra Mani Saha's case was followed in the decisions in Sri. Ranga Nilayam Rama Krishna Rao's case, Ganapat Singh's case, Pattam Khader Khan's case and Balakrishnan's case (Supra). In United Finance Corporation v. M. S. M. Haneefa (Dead) through Legal Representatives (2017) 3 SCC 123 , it was held that sale becomes absolute under Art.134 of the Limitation Act, 1963 on termination of proceedings initiated to set aside order of confirmation of sale under Order XXI R.92(1) CPC and not mere passing of a confirmation order. 19. Under S.134 of the Limitation Act, the starting point for filing an application for delivery of possession is when the sale becomes absolute. Analysis of the above case laws indicates that the term 'when sale becomes absolute' does not refer to the sale becoming absolute under Order XXI R.92 CPC. The decisions in Chandra Mani Saha, Sri Ranga Nilayam and Pattom Khader Khan affirm that, sale becomes absolute when the title of property passes to the auction purchaser on passing of order under Order XXI R.95. Above judicial precedents reiterate that the date when the sale becomes absolute as referred in Art.134 need not correspond to the date of sale or to the date of issuance of sale certificate or passing of the order making the sale absolute under Order XXI R.92. Passing of such an order under Order XXI R.92 is mandatory obligation of the executing court, if no application is made under R.89, R.90 and R.91 of Order XXI or if such an application is filed, after it is dismissed. However, in case of pendency of consequential proceedings in which Court sale is under challenge, starting of limitation period under Art.134 of the Limitation Act may get extended depending on the pendency of such proceedings. This is evident from the judgment of Supreme Court in United Finance Corporation (supra) wherein it was held that Legislature consciously adopted the expression "when the sale becomes absolute" in Art.134 and not when sale was confirmed. So long as revision filed against an order passed in the Court of execution proceeding was pending, it could not be held that, sale has become absolute, it was observed. Sale becomes absolute on the culmination of above proceedings. This is the starting point of limitation in filing application under S.134 of Limitation Act, 1973. So long as revision filed against an order passed in the Court of execution proceeding was pending, it could not be held that, sale has become absolute, it was observed. Sale becomes absolute on the culmination of above proceedings. This is the starting point of limitation in filing application under S.134 of Limitation Act, 1973. Point No.B: Is it mandatory for the auction purchaser to take possession of the property purchased in auction? 20. S.51 of the CPC refers to the various modes of execution of decree, which includes attachment and sale or sale without attachment of any property. Order XXI R.64 to 104 cover the complete scheme of sale, delivery of possession, adjudication of all disputes and claims over property sold relating to execution, discharge and satisfaction. The above Rules show that it is a self contained exhaustive scheme as far as the execution of a decree by sale is concerned. By virtue of S.12 of the CPC, coupled with S.47 of CPC, parties to the execution are confined to the Execution Court itself, by virtue of the exhaustive provisions under Order XXI R.64 to 104 of CPC for adjudication of all disputes arising from the execution, discharge and satisfaction of decree and not by way of fresh suit. These provisions are thus intended to avoid delay, multiplicity of the proceedings and divergent or inconsistent orders and to provide speedy and effective reliefs. 21. Section 65 of CPC provides that where an immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property was sold and not from the time when the sale becomes absolute. By virtue of court sale, the right, title and interest which the judgment debtor enjoyed over the property vests with the auction purchaser to the same extent. Evidently, that right is bereft of possession which is one crucial incident of ownership of the property. He is entitled to obtain delivery of possession from the judgment debtor, through execution court and the detailed procedure for delivery is also provided under Order XXI CPC itself. Evidently, even after sale, execution process has to continue and comes to an end with delivery of property, which is the normal and natural culmination of execution by sale of immovable property. Evidently, even after sale, execution process has to continue and comes to an end with delivery of property, which is the normal and natural culmination of execution by sale of immovable property. In Anjaneyan's case, the Division Bench of this Court held that, if specific immovable property is sold in execution of decree, it is imperative on the decree holder to take delivery of the sale to make the execution complete. Evidently, if he fails to take delivery of property pursuant to sale, the right, title and interest of the auction purchaser on the property sold still continue to vest with the auction purchaser, though he will be bereft of physical possession of the property. 22. In Harnandari Badridas v. Debidutt Bhagwati Prasad and Others (1973) 2 SCC 467 the question that came up before the three Judge Bench of the Supreme Court was whether after the auction safe in execution of decree, the auction purchaser can move the execution court for delivery of possession of the immovable property or whether he has to file a separate suit to get possession. lt was contended by the judgment debtor that as soon as conveyance deed in favour of the auction purchaser is executed, the decree stands satisfied and there was an end to the execution proceedings, so that the question of the auction purchaser getting possession of the property was a matter which has nothing to do with the execution, discharge or satisfaction of the decree. Refuting the above contention, the Bench held that S.47 CPC should be construed liberally. Reliance was placed on the decision of the Privy Council in Ganapathy v. Krishnamachariar, AIR 1917 PC 121 , where it was held that, if a liberal construction is put on S.47 of CPC, it is difficult to understand why a decree holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. It was held that the decree holder purchases the property in execution of his decree with the permission of the court. It was held that the decree holder purchases the property in execution of his decree with the permission of the court. Hence, if any question is raised by the judgment debtor at the time of delivery of possession or thereafter concerning the nature of the rights purchased or if the judgment debtor offers any resistance to delivery of possession, the question relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit and it has to be adjudicated by the execution court itself. 23. The above factual position coupled with the statutory provision lead to the definite conclusion that delivery of possession, actual or symbolic of the properties sold in execution by the auction purchaser is the natural and normal culmination of sale of immovable property in execution. In the case of sale of undivided rights of the auction purchaser, delivery can be effected by handing over of symbolic possession of the undivided right purchased by the auction purchaser. Judicial view seems to be consistent that, it was imperative on the part of the decree holder to take possession of the property auctioned by him. If he fails to get possession through execution court, his relief under Order XXI CPC is lost, though his title over the property sold subsists. Point No.C: If the auction purchaser fails to take delivery of the property within the limitation period as above, is he entitled to file a fresh suit? and if so, what are its limits and appropriate relief which the auction purchaser is entitled to seek? 24. The question whether an auction purchaser who failed to apply for delivery in accordance with Art.134 of the Limitation Act is entitled to file a fresh suit has given rise to divergent judicial precedents. This needs to be analysed on the question whether a fresh suit will be hit by S.12 of CPC and S.47 of CPC. 25. A Full Bench of Calcutta High Court had occasion to consider the above issue, in Lakshan Chandra Naskar v. Ramdas Mandal, AIR 1929 Cal.1374. In that case a money decree was obtained by the decree holder and ultimately the property was sold. Later the question relating to the adjustment made by payment was raised and the Court sale was challenged. A Full Bench of Calcutta High Court had occasion to consider the above issue, in Lakshan Chandra Naskar v. Ramdas Mandal, AIR 1929 Cal.1374. In that case a money decree was obtained by the decree holder and ultimately the property was sold. Later the question relating to the adjustment made by payment was raised and the Court sale was challenged. The question that was referred to the Full Bench was whether an objection to an execution sale on the ground that decree in execution of which sale took place was satisfied prior to the sale might be raised in a fresh suit. On an evaluation of the law, the Court held that the judgment debtor who failed to have an adjustment recorded in a suit can neither bring a fresh suit to set aside the sale on the footing of the adjustment nor apply under S.47 of CPC for any such relief. It was held that, such a course was forbidden by S.47 of CPC. 26. In M. V. S. Manikayala Rao v. Narsimhaswami and others (supra) coparcener's undivided property was sold in execution. Auction purchaser purchased 4/5 share in the property. Delivery was ordered and it was effected symbolically. 12 years thereafter the auction purchaser filed a suit for partition. The question arose whether the suit was barred by limitation. The limitation period was 12 years from the date of possession. While discussing the coparcener's right over the property, the three Judges Bench of the Supreme Court held that it was well settled that purchaser of a coparcener's undivided interest in joint family property was not entitled to possession of what he has purchased. His only right was to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. It was also held that his right to possession would start from the date when a specific allotment was made in his favour and he is not entitled to possession till a partition has been effected. Hence the Court held that limitation would not start from the date when symbolic possession was made. It was also held that his right to possession would start from the date when a specific allotment was made in his favour and he is not entitled to possession till a partition has been effected. Hence the Court held that limitation would not start from the date when symbolic possession was made. Though the question now under reference in this case was not the subject matter of the above case, it indirectly indicated that a suit for partition may lie, if it is not barred under S.47 CPC. 27. In Pattam Khader Khan's case (supra), a preliminary decree for partition was passed on 07/01/1977. In final decree proceedings, the house situated in the property was put for sale, and the son of the plaintiff purchased the property. Sale was confirmed by the court on 07/08/1984. Sale certificate was belatedly issued on 09/11/1989. Auction purchaser filed an application under Order XXI R.95 on 09/11/1989 seeking delivery of possession of the property sold. Objection was raised by the judgment debtor contending that the application of the auction purchaser was barred by limitation under Art.134 of the Limitation Act and hence delivery of possession could not be granted. This objection was sustained by the District Munsiff. The order of the District Munsiff was challenged in the High Court, High Court reversed the order and held that auction purchaser was entitled to take possession of the house. This came up before the Supreme Court for consideration. The crucial question that was considered by the Supreme Court was the starting point of limitation under Art.134 of the Limitation Act. It was held at para 13, that the limitation period starts not from the date of issuing the sale certificate, but the date when the sale becomes absolute. It was noted by the Supreme Court that the period of one year limitation, now prescribed under Art.134 of the Limitation Act, 1973 was in substitution of a three year period prescribed under Art.180 of the Indian Limitation Act of 1908 was reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask for delivery of possession.Court proceeded to add that, on his failure to avail of such quick relief, the law relegates him to the remedy of a suit for possession in a regular way. However, it is pertinent to note that in Pattam Khader Khan's case, the contra view laid by the three Judges Bench decisions in Manikayala Rao's case and in Harnandari Badridas's case (supra) were not referred to. 28. The observation of the Supreme Court in the above case that "on his failure to avail of such quick remedy the law relegates him to the remedy of a suit for possession in a regular way" was relied on by another two Judges' Bench of the Supreme Court in Balakrishnan's case (supra). In the above case, the scope of Art.134 of the Limitation Act was the subject matter of consideration. While discussing it, the court referred to Pattam Khader Khan's case and Ganapat Singh's case and affirmed that limitation starts running, from the date when the sale becomes absolute. The Court referred to para 13 of Pattam Khader Khan's case and reiterated the view taken in Pattam Khader's case that on the failure of auction purchaser to seek delivery of the property as provided under Order XXI R.94 of CPC, the Law relegates him to the remedy of regular suit for possession based on title, subject again to limitation. In Ganapat Singh's case (supra) at para 11, Supreme Court had observed that it may be that before amendment of S.47 of CPC, an auction purchaser could file a suit for recovery of possession of property within 12 years on the date of sale but in view of amendment to S.47 of CPC, such a suit could not be filed. 29. However, in K. R. Lakshminarayana Rao's case (supra) the question regarding Order XXI R.95 in the background of S.47 of CPC had come up for consideration. In that case, a money decree was passed. In execution of the decree, property of the judgment debtor was sold in auction. The plaintiff decree holder purchased the property in 1973. Sale was confirmed in 1973. Execution appeal was filed against the proceedings which was dismissed in 1974. Sale certificate in relation to the property was issued in favour of the plaintiff on 28/11/1980. However, he did not take any steps to take delivery of the property in terms of Order XXI R.95 of CPC within one year. In 1998, he filed a fresh suit praying for declaration of title and possession of the suit property which was dismissed by the trial court. However, he did not take any steps to take delivery of the property in terms of Order XXI R.95 of CPC within one year. In 1998, he filed a fresh suit praying for declaration of title and possession of the suit property which was dismissed by the trial court. Issue was raised whether the suit was barred under S.47 of CPC. Trial Court answered it holding that the suit was not maintainable. When the matter was taken up in appeal to the High Court, it was held that even if the suit was not maintainable, the court had ample power to direct that the plaint shall be treated as an application filed under Order XXI R.95 CPC. Supreme Court, after analyzing Order XXI R.95 CPC held that, a bare perusal of Order XXI R.95 CPC would have no manner of doubt, and in particular, having regard to the amendments carried in CPC that steps for obtaining delivery of property in occupancy of the judgment debtor is required to be taken by the auction purchaser in terms of Order XXI R.95 CPC and thus a separate suit to enforce such a light would, therefore, be not maintainable. It was held that when a decree is satisfied, the execution comes to an end. In that view of the matter, a proceeding in the nature of one contemplated under Order XXI R.95 CPC is required to be initiated for the purpose of obtaining delivery of possession of auctioned property. Such an application should be filed within the prescribed period of limitation as provided under Art.134 of Limitation Act. Supreme Court after holding that a separate suit for the purpose of recovery of possession was not maintainable, however held that the suit filed for such purpose could, as a measure of ex debito justitiae, be treated as an application under Order XXI R.95 CPC, if it is filed within the limitation period under Art.134 of Limitation Act. To support this relief, the Court Placed reliance on the Nandarani Mazundar v. Indian Airlines, (1983) 4 SCC 461 . The above decision categorically held that a separate suit for possession of auctioned property was not maintainable. 30. The Division Bench of this Court in Anjaneyan v. Abdul Razak ( 2008 (1) KLT 119 ) followed the law laid down in Lakshminarayana Rao's case (supra). The above decision categorically held that a separate suit for possession of auctioned property was not maintainable. 30. The Division Bench of this Court in Anjaneyan v. Abdul Razak ( 2008 (1) KLT 119 ) followed the law laid down in Lakshminarayana Rao's case (supra). It held that If an application under S.134 of the Limitation Act was not filed within the statutory time, a separate suit for recovery of possession was barred under S.47 of CPC. 31. In Aravindakshan Nair v. Binoy Kurian, 2017 (3) KLT 135 , almost identical issue came up for consideration before the Single Bench of this Court. In that case also auction purchaser had failed to take delivery of the auctioned property within one year, as stipulated under Art.134 of the Constitution. Hence, he filed a separate suit for possession based on title. The suit was decreed rejecting the contention that it was hit by Art.134 of the Limitation Act and S.47 of CPC. This was challenged by the defendant before the Lower Court which concurred with the Trial Court. Hence, the second appeal was filed. The question posed was whether he was entitled to file a regular suit for possession based on title subject to the limitation. 32. Contention of the learned counsel for the appellant - defendant before the learned Single Judge was that the second suit was barred by S.47 of CPC. The learned Single Judge appreciated the above contention holding that the argument advanced by the learned counsel was really attractive. It was opined that S.12 of CPC as well as Explanation II(b) of S.47 CPC read along with Order XXI R.95 CPC, when clubbed with the legal principles in Art.134 of Limitation Act, would clearly make out that a person, who has not resorted to the procedure in O.21 R.95 CPC may lose his right to recover property after the time prescribed in Art.134 of Limitation Act. It was held that, though on a theoretical plane, the learned Single Judge agreed with this line of thinking, but the court opined that it was powerless to accept that argument, in the light of the precedential principles laid by the Supreme Court in Pattam Khadar Khan's case. Second appeal was accordingly dismissed, relying on Pattam Khader Khan's case (supra). 33. Second appeal was accordingly dismissed, relying on Pattam Khader Khan's case (supra). 33. In Pattam Khader Khan's case, the question whether the auction purchaser who fails to file an application under Order XXI R.95 is entitled to file a fresh suit based on the sale deed claiming himself right over the property and whether he is entitled to seek for possession was not the subject matter directly in issue. It was neither considered incidentally also. The crucial para 13 of the above decision clearly shows that the observation that in case of failure to file an application under Order XXI R.95, the party is relegated to his remedy of filing fresh suit seems to be a passing reference. Even assuming that it can be treated as the binding law, the subsequent two Judges Bench of the Supreme Court in Lakshminarayanan Rao Case (Supra) took a view contrary to the proposition laid in Pattam Khadar Khan's case. 34. Whether a fresh suit is hit by Explanation II to S.47 was never placed before the Hon'ble Supreme Court in Pattom Khader Khan's case. Supreme Court did not have occasion to consider the question whether it was barred by S.47 CPC. The above observation of the Supreme Court, which was followed in Balakrishnan's case as a precedent was without reference to the spirit of S.12 and S.47 CPC, provisions relating to sale as contemplated under Order XXI CPC and the amendment to Art.134 of Limitation Act. The period of limitation of 3 years provided in Art.180 of the old Act was reduced to one year pursuant to Law Commission (III - report) recommendation. Though the reason for reducing the period is not mentioned in the report, it appears that Law Commission was persuaded by the reason that property is brought for sale after a prolonged litigation. Providing 3 years for taking delivery itself was found to be too long a period. Applying that rationale, the argument that even after failure to apply for delivery, fresh suit can be filed is contrary to the above referred provisions of CPC. The underlying principle of CPC was to provide for a fast and effective remedy for all issues that may arise in the course of execution, discharge and satisfaction of a decree. Applying that rationale, the argument that even after failure to apply for delivery, fresh suit can be filed is contrary to the above referred provisions of CPC. The underlying principle of CPC was to provide for a fast and effective remedy for all issues that may arise in the course of execution, discharge and satisfaction of a decree. Further, interpreting that, if the relief which could be availed under Order XXI R.95 CPC was barred by limitation, same relief can be sought thereafter by way of a fresh suit will virtually make S.47 CPC redundant, in such cases. In the light of the above, Pattam Khader Khan's case cannot be considered to lay down binding precedent of law, in this regard. Balakrishnan's case neither referred to Manikayala Rao case or precedent in Lakshminarayana Rao's case which were anterior in time to Balakrishnan's case. Hence, regarding claims which arise from the execution discharge and satisfaction of decree, the view laid down in Lakshminarayana Rao's case and Manikayala Rao's case should prevail. 35. This issue can be viewed from another perspective. Whether the same proposition will apply to claims and/or disputes outside S.47 CPC and which arise from independent cause of action and thereby do not offend S.47 CPC? The question involved is, if for some reason, the auction purchaser is unable to seek for delivery of possession, whether he will be precluded from recovering possession of the property on the strength of title. 36. After the Court sale, the auction purchaser is entitled to obtain certificate of sale in terms of Order XXI R.94 of CPC. Once the certificate is obtained, auction purchaser becomes the title holder of the property which he has purchased as per the certificate. S.65 of CPC reads as under: "65. Purchaser's title. - Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute." Therefore, when the sale had become absolute, the property is deemed to have vested in the purchaser from the time when the property is sold. In other words, there is a vesting of property in favour of the purchaser as on the date of sale, though the sale becomes absolute only at a later date. In other words, there is a vesting of property in favour of the purchaser as on the date of sale, though the sale becomes absolute only at a later date. The procedure for effecting delivery in an application under Order XXI R.95 is specified under R.347 of the Civil Rules of Practice, Kerala, which reads as under; "347. Delivery to purchaser or decree - holder. - Where under a decree or in pursuance of a sale certificate, any person is entitled to be put in possession of any property, he may apply for the same and on payment of the requisite process fee the Court shall order the issue of a warrant for delivery of such property, unless it thinks it fit to issue notice to any person interested in opposing the same." 37. The form of warrant to be issued to the bailiff of the Court under Appendix E of CPC reads as under: "No.39 ORDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION (Order XXI, R.95) (Title) To The Bailiff of the Court. WHEREAS ......... has become the certified purchaser of ......... at a sale in execution of decree in Suit No. ......... of ......... 19........./20.........; You are hereby ordered to put the said ........., the certified purchaser, as aforesaid, in possession of the same. GIVEN under my hand and the seal of the Court, this ......... day of ......... 19........./20......... Judge." 38. Therefore, the method of delivery specified in an application under Order XXI R.95 is in the form of a warrant issued by the Court and the bailiff delivering possession to the auction purchaser. 39. We are concerned with an instance where after the sale has become absolute, entitling the auction purchaser to have title to the property and he does not seek delivery of property within the specified time, what would be the nature of possession of the judgment debtor or any other person in possession of the property requires to be considered. One of the issues which had been referred for consideration is whether a separate suit for recovery of possession was maintainable after the period specified for delivery of possession under Art.134 of the Limitation Act. 40. It is relevant to note that in terms of S.47, matters relating to "delivery of possession", is deemed to be a question relating to the execution, discharge or satisfaction of the decree. 40. It is relevant to note that in terms of S.47, matters relating to "delivery of possession", is deemed to be a question relating to the execution, discharge or satisfaction of the decree. The words "delivery of possession" appears in Order XXI R.95 as well. Taking into account the scope of enquiry to be conducted by the Execution Court, which apparently is a power of the Court to permit the auction purchaser to acquire possession of the property, the said words have to be given a narrow meaning. Therefore, if a narrow interpretation is given to the words "delivery of possession", what is prohibited by filing a separate suit is only an attempt to seek "delivery of possession" as a sequel to court sale and not a suit for possession on the strength of title. In fact, in the judgment of the Apex Court in Ganapat Singh's case (supra), the question considered was whether an application under Order XXI R.95 of CPC for delivery of possession of the property purchased by the auction purchaser was barred by limitation under Art.134 of the Limitation Act. Apparently, the said application was filed after one year from the date when the sale had become absolute. Contention urged was that the application was within the limitation period prescribed under Art.136 which prescribes limitation period of 12 years for execution of the decree. This contention was negatived by the Apex Court. Art.136 of Limitation Act was with reference to the period prescribed for executing a decree, which is 12 years. It was held that Art.136 will not apply to an application under Order XXI R.95. There cannot be any quarrel regarding the said position. 41. However in K. R. Lakshminarayana Rao's case (supra), the plaintiff/decree holder, purchased the property in auction, but did not take any steps to obtain delivery of possession of the property within one year as provided under Art.134 by filing an application under Order XXI R.95 of CPC. He had obtained the sale certificate on 28/11/1980. In the year 1998, he filed a suit for declaration of title and possession. A contention was raised stating that the suit was barred under S.47 of CPC. The High Court having found that the suit was not maintainable, directed the plaint to be treated as an application filed by the plaintiff under Order XXI R.95 CPC. In the year 1998, he filed a suit for declaration of title and possession. A contention was raised stating that the suit was barred under S.47 of CPC. The High Court having found that the suit was not maintainable, directed the plaint to be treated as an application filed by the plaintiff under Order XXI R.95 CPC. Apex Court held that a petition under Order XXI R.95 could not have been filed after the period of limitation and it was held at paragraph 8 as under : "8. A bare perusal of the aforementioned provisions would leave no manner of doubt and in particular having regard to the amendments carried in CPC by reason of the CPC Amendment Act, 1976 that the steps for obtaining delivery of property in occupancy of the judgment - debtor is required to be taken by the auction - purchaser in terms of O.21 R.95 CPC and, thus, a separate suit to enforce such a right would, therefore, be not maintainable.” There also, the question considered was whether the provision of Art.136 of the Limitation Act would apply. 42. Even though an application under Order XXI R.95 is barred by limitation, what is the nature of right that a title holder will have in respect of a property requires to be considered. Reference can be made to Art.65 of the Limitation Act, which reads as under: Description of suit Period of limitation Time from which period begins to run Explanation. - For the purposes of this article – (a) where the suit is by a remainder man, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment - debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment - debtor who was out of possession. For possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff. 43. In fact, there is no limitation for filing a suit for possession of immovable property based on title which is rather clear from Art.65. The limitation of 12 years is prescribed only when the defendant claims that his possession is adverse to the interest of the plaintiff. The starting point of limitation is only when the possession of the defendant becomes adverse to the plaintiff. If the auction purchaser has a case that though the period for seeking delivery of possession had expired, the possession of the judgment debtor or any person on his behalf is adverse to his interests, the law does not prevent the auction purchaser in filing a suit for recovery of possession of the property on the strength of title in terms of Art.65 of the Limitation Act which apparently provides for a larger period of limitation. Explanation (c) to Art.65 takes care of an instance where a suit is filed by a purchaser at the sale in execution of the decree in a case where the judgment debtor was out of possession as on the date of sale. Explanation provides that the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession. 44. Of course, such an issue has not arisen for consideration in the case on hand. The said right will depend upon the pleadings of the parties and the respective contentions in that regard. As far as an auction purchaser is concerned, he can seek delivery of possession by approaching the execution Court and not by a separate suit. But after the period of limitation, to seek delivery of possession, he stands in the position of a title holder of a property and he is entitled to seek possession of the property in accordance with law. What is the method to be adopted or what are the pleadings to be made and what is the nature of possession of the person who continues to be in possession of the said property are matters of pleading. What is the method to be adopted or what are the pleadings to be made and what is the nature of possession of the person who continues to be in possession of the said property are matters of pleading. In the judgments in Ganapat Singh (supra) and K. R. Lakshminarayana Rao (supra), the Apex Court had only considered the question whether Art.136 would apply to a petition under Order XXI R.95 but has not considered whether a suit for possession on the strength of title would be maintainable or not. We feel that such a view is also possible in the case, or else, the auction purchaser, who will have a valid title, will not be in a position to recover possession of the property at any point of time and his title will become a dead paper. 45. The above discussion leads to the conclusion that in the case of failure on the part of the auction purchaser to file an application under Order XXI R.95 CPC, within the limitation period provided under Art.134, his right to seek same relief by a fresh suit is hit by S.47 of CPC. The law has been correctly laid down in Lakshminarayana's case and followed by the Division Bench of this Court in Anjaneyan's case. However, in relation to the claims which do not arise in relation to discharge, satisfaction or execution of the decree, and a suit for possession on strength of title which fall within Art.65 of the Limitation Act, a fresh suit may be maintainable. Evidently, in case of a person who procures an undivided right over the auctioned property, his right under Order XXI CPC terminates with delivery of symbolic possession of the undivided right. That will not preclude him from seeking partition of the property by a suit. 46. Almost identical view as expressed by us was laid down in judgment of the learned Single Judge of Andhra Pradesh High Court in Vegendla Subba Rao v. Puwada Srinivasa Rao and Others ( AIR 2005 AP 449 ). It was noted by the learned Single Judge that in Pattam Khader Khan's case the purport of Explanation II of S.47 CPC was not canvassed before the Supreme Court, obviously because the occasion did not arise. It was noted by the learned Single Judge that in Pattam Khader Khan's case the purport of Explanation II of S.47 CPC was not canvassed before the Supreme Court, obviously because the occasion did not arise. It was held that in the teeth of clear, unequivocal and unambiguous prohibition contained in S.47 against filing of a suit by an auction purchaser to recover the possession of the property purchased by him, it is difficult to treat the last sentence in paragraph 13 of the judgment as an absolute proposition of law. The permissibility of filing a separate suit in spite of the bar contained in the Explanation II of S.47 CPC, did not fall for consideration before the Lordships in Pattam Khader Khan's case (supra). The above view of the learned Single Judge was reiterated in Y. Prasad Rao and Another v. Venkat Raju ( AIR 2007 AP 142 ). It was held that on confirming the auction sale, the plaintiff exhausted all his remedies under S.47 of CPC, and the relevant Rules of O.21 of CPC to get the sale as well as order of confirmation set aside the sale. Separate suit to set aside the sale was barred under S.47 and R.92 of Order XXI. 47. In the light of the above, the Reference is answered holding that on failure of an auction purchaser to apply for delivery as provided under Order XXI R.95 CPC, his right to file a fresh suit for enforcing delivery in execution is barred. However, suits which do not offend S.47 CPC and suits for possession on the strength of title deed including purchase certificate that fall within the frame work of Art.65 of Limitation Act would be maintainable. To that extent, the law laid down in Lakshminarayana's case and followed by the Division Bench in Anjaneyan's case is the correct exposition of law. Registry shall place the matter before the Division Bench for hearing.