Holding

The petition for delivery of possession was barred by the one‑year limitation under Article 134 of the Limitation Act, and consequently the appeal was dismissed, without re‑examining the sale’s validity under Order XXI Rule 64.

Summary

Balakrishnan, the decree holder, purchased the judgment debtor's property in a court auction in 1981 and the sale was confirmed in 1983. He later filed an application for delivery of possession, which the trial court ordered in his favour. The respondent challenged the order, arguing that the application was filed beyond the one‑year limitation prescribed by Article 134 of the Limitation Act, which runs from the date the sale becomes absolute (i.e., its confirmation). The High Court set aside the sale as illegal for not complying with Order XXI Rule 64 of the CPC and remitted the matter to the executing court. On appeal, the Supreme Court held that the High Court could not re‑examine the sale’s validity and, more importantly, that the petition for delivery of possession was barred by the limitation period, so the appeal was dismissed. The Court emphasized that compliance with Order XXI Rule 64 is mandatory but, having been previously confirmed, the sale’s legality was not open for fresh review.

Issues considered

The mandatory nature of Order XXI Rule 64 of the CPC and the effect of its non‑compliance on the validity of a sale in execution.
Whether the High Court could consider the applicability of Order XXI Rule 64 after an earlier revision petition had been dismissed.
The commencement and period of limitation for an application for delivery of possession under Article 134 of the Limitation Act, 1963.
The appropriate point from which the limitation period starts – confirmation of sale or issuance of sale certificate.
The relevance of the Tamil Nadu Debt Relief Act, 1980 to the sale.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 64, s. Rule 92, s. Rule 94, s. Rule 95, s. Section 47
Limitation Act, 1963s. Article 134

Subjects

Order XXI Rule 64Limitation ActArticle 134sale in executiondelivery of possessionstatute of limitationscourt auctioncivil appealTamil Nadu Debt Relief Actmandatory procedural compliance

Judgment

' BALAKRISHNAN A
v.
MALAIYANDI KONAR

FEBRUARY 17, 2006

[ARIJIT PASAYAT AND R.V. RAVEENDRAN, JJ.] B

1
_;
Code of Civil Procedure, 1908-0rder XX! Rule 64:

Limitation Act, 1963-Article 134:
c
Purchase of property of judgment debtor by decree holder in court
auction in pursuance of execution of decree-Confirmation of sale-In one
round of litigation upto High court order ofsale not interfered with-Petition
· for delivery of possession by decree holder-Objected to as being beyond
limitation-Order for delivery by trial court-In revision, High Court holding D
the sale to be illegal considering applicability of Order XX! Rule 64 and
-I remission of case to trial court for considering validity of sale-On appeal,
~ Held: High Court could not have considered question ofapplicability ofOrder
XX! Rule 64-But the petition for delivery ofpossession was not maintainable
having been filed beyond limitation period-Hence matter remitted to trial
court for considering maintainability of the application and not for considering E
validity of sale.

Order XX! Rule 64-Sale in execution proceedings-Requirement of
compliance of the provision-Held: The procedural compliance of Order XX!
Rule 64 is mandatory requirement-A sale held without examining this aspect
F
would be illegal and without jurisdiction.
-1
Article 134-Limitationforfiling application for delivery ofpossession-
Held: Limitation for the purpose of Article 134 starts from the date of the sale
becoming absolute i.e. the date of confirmation of sale-On failure to avail
the remedy within limitation, law relegates to the remedy of regular suit for G
possession based on title, subject to limitation.

-l Suit filed by appellant against respondent was decreed. In the
execution proceedings appellant-decree holder purchased the property of
respondent-judgment debtor in court auction. Sale was also confirmed.
H
363
t
364 SUPREME COLIRT REPORTS 120061 2 S.C.R.

A Judgment debtor's application to set aside the sale in view of Tamil Nadu
Debt Relief Act, 1980 was dismissed. His Revision Petition was also •
dismissed. When the decree holder filed application for delivery of
possession, judgment debtor objected to the same on the ground of its being
beyond limitation. Trial Court ordered delivery. The Revision Petition filed
B by the judgment debtor was allowed holding that the auction sale and its
confirmation was illegal in view of order XXI Rule 64 CPC and hence
remitted the matter to Executing Court to consider the objection. Hence
the present appeal.

Dismissing the appeal, the Court

C HELD: I. Use of the expression "necessary to satisfy the decree" in
Order XXI Rule 64 CPC clearly indicates the legislative intent that no sale
can be allowed beyond the decretal amount mentioned in the sale
proclamation. In all execution proceedings, Court has to first decide
whether it is necessary to bring the entire property to sale or such portion
D thereof as may seem necessary to satisfy the decree. If the property is large
and the decree to be satisfied is small, the Court must bring only such
portion of the property, the proceeds of which would be sufficient to satisfy
the claim of the decree holder. It is immaterial whether the property is
one or several. Even if the property is one, if a separate portion could be
sold without violating any provision of law only such portion of the
E property should be sold. This is not just a discretion but an obligation
imposed on the Court. The procedural compliance of Order XXI Rule 64
of the Code is a mandatory requirement. The sale held without examining
this aspect and not in conformity with this mandatory requirement would
be illegal and without jurisdio:tion. The duty cast upon the Court to put
F to sale only such portion or portion thereof as is necessary to satisfy the
decree is a mandate of the legislature which cannot be ignored. In the facts
of the present case the auction sale did not meet the requirements of law.
(368-G-H, 369-A, B, D(

Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma, AIR (1977)
G SC 1789; Ambati Narasayya v. M Subba Rao and Anr., (1989) Suppl. 2 SCC
693; S. Mariyappa (Dead) by LRs. and Ors. v. Siddappa and Anr., (2005) 10
SCC 235; S.S. Dayananda v. KS. Nagesh Rao and Ors., 11997( 4 SCC 451
and Desh Bandhu Gupta v. NL. Anand and Rajinder Singh, (1994J 1 SCC •
J
131, relied on.

H 2.1. The limitation for the purpose of Article 134 of Limitation Act,
I

+/
l3ALAKRISHNAN v. MALAIY ANDI KONAR 365
i
1963 starts from the date of confirmation of sale. The sale becomes A,
~- absolute on confirmation under Order XXI Rule 92 CPC effectively
passing title. It cannot be said to attain finality only when sale certificate
is issued under Order XXI Rule 94. The period of one year limitation now
prescribed under Article 134 of the Limitation Act in substitution of a
three year period prescribed under Article 180 of the Limitation Act, 1908
is reflective of the legislative policy of finalizing proceedings in execution
B
as quickly as possible by providing a quick forum to the auction purchaser
1
to ask for the delivery of possession of the property purchased within that
_J period from the date of the sale becoming absolute rather than from the
date of issuance of the sale certificate. On his failure to avail such a quick
remedy the law relegates him to the remedy of a regular suit for possession c
based on title, subject again to limitation. 1369-H; 370-B-DI

Ganpat Singh (dead) by Lrs. v. Kai/ash Shankar and Ors., [198713 SCC
146 and Pattam Khader Khan v. Pattern Sardar Khan and Anr. [1996[ 5 SCC
48, relied on.
D
2.2. The plea that the respondent was responsible for the delay caused
as he had filed a Civil Revision before High Court, is untenable. The Civil
i~ Revision Petition was dismissed about 6 years before the application for
delivery of possession was filed. 1370-DI

3. Though the question of applicability of Order XXI Rule 64 of the E
Code should not have been considered by the High Court in view of the
dismissal of earlier Civil Revision Petition, even otherwise no relief could
have been granted to the appellant in view of Article 134 of the Limitation
Act. Substantive justice can be done to the parties if the order passed by
the High Court remitting the matter is maintained. But the question that
F
has to be considered will not be the validity of the sale, but the
-~ maintainability of the application for delivery of the property. [370-E-Fl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2062 of2000.

From the Judgment and Order dated 13.7.1998 of Madras High Court
G
in C.R.P. No. 2328/1994.

A.T.M. Sampath, Mrs. T.S. Shanti and Mrs. R. Meena Kumari for the
~ Appellant.

V. Prabhakar, Ashok K. Sadhu Khan and Mrs. Revathy Raghavan for
·-· H
366 SUPREME COURT REPOR rs [20061 2 S.C.R.

A the Respondent.
The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Challenge in this appeal is to the judgment
rendered by a learned Single Judge of the Madras High Court holding that
B the auction sale held in an exec:ution proceeding and confirmation thereof
was illegal. The matter was remitted to the Executing Court with a direction
to consider the objection in terms of Section 47 of the Code of Civil Procedure,
1908 (in short the 'Code') and to consider whether there was any need for
sale of the property in view of the deposit made by the judgment debtor-
respondent herein. The appellant who is the decree holder purchased the
C property in the Court auction sale. The proceedings relats to O.S. No. 385/
1997 on the file of District Munsif, Kulithalai.

The background facts need to be noted in brief.

The suit was filed by the appellant on the basis of a promissory note
D execuied by the respondent in favour of the appellant. The suit was decreed.
In the proceeding for execution of the decree in his favour (E.P. No. 7251
1981 on the file of District Munsif, Kulithalai later renumbered as E.P. 45/
1983 on the file of District Munsif, Manapparai) the appellant purchased the
judgment debtor's property on 8.7.1981 in Court auction after obtaining
E permission of the Court for a sum of Rs. 7,510. The sale was confirmed on
22.8.1983.

Respondent filed EA 17/83 to set aside the sale on the ground that he
is entitled to the benefits under Tamil Nadu Debt Relief Act, I980 (in short
the 'Debt Relief Act'). On 30.4.1983 application filed by the respondent was
F dismissed on the ground that the respondent has not made out a case for
getting benefit under the Debt Relief Act. It was also held that apart from the
property covered by the auction ·;ale, he had got income from other properties.
Respondent filed Civil Revision Petition No. 3963 1983 before the Madras
High Court against the order of dismissal of EA 17/83. By order dated
G 10.9.1987 the High Court dismissed the Civil Revision Petition upholding the
findings of the Executing Court.

EP 80/93 was filed by the appellant on 13.8.1993 under Order XX!
Rule 95 of the Code for delivery of possession. Respondent filed counter
affidavit inter alia taking the stand that the Execution Petition was liable to
H be dismissed, as it was filed beyond the limitation period of one year prescribed
t
/
BALAKRISHNAN v. MALAIYANDI KONAR [PASAYAT. J.J 367

under Article 134 of the Limitation Act, 1963 (in short the 'Limitation Act'). A
'~,
The trial Court overruled the objections and ordered delivery. Respondent
thereafter filed Civil Revision Petition No. 2328/1994 before the High Court
which was allowed on 13.7.1998 by the impugned judgment.

During the hearing of the case, the High Court in order to shorten
litigation gave option to the judgment debtor to deposit decretal amount with B
interest. In fact the respondent deposited Rs. 35,000. Though at the time of
hearing, learned counsel appearing for the present appellant accepted that the
1 offer of judgment debtor (respondent herein) was a reasonable one, he informed
.)
the Court that his client was not agreeable to receive any amount and wanted
the property. The High Court on examining the scope and ambit of Order c
XXI Rule 64 of the Code held that the Executing Court while directing the
sale had not kept in view the correct parameters of the requirements enjoined
by the said provision, in particular to decide first whether it is necessary to
bring the entire attached property to sale. Accordingly, the following directions
,, were given:
D
"In view of the abovesaid principle, I am of the view that the
Executing Court without application of mind has directed the sale of
the property of nearly 5 acres for a paltry sum of Rs. 4,000 and odd.
1
~ Now the petitioner has shown his bona fide by depositing the amount
of Rs. 35,000 and I am of the view that the parties can be given an
E
opportunity to establish the same. It is open to the petitioner to
convince the lower Court as .to which portion of the property is
sufficient to satisfy the decree amount and the lower Court is directed
to consider the matter afresh, in the light of the decisions of the
Supreme Court as well as the judgment of this Court referred above,
dispose of the claim of the parties in accordance with law. Since the F
Executing Court has not acted in accordance with the above said
-1 principles of the Supreme Court, I am of the view that the sale itself
is liable to be set aside even though no application has been filed by
the petitioner. However, the objection filed by the petitioner is directed
to be treated as a petition under Section 47 CPC. Hence, the matter
G
is remitted back to the Executing Court with direction to dispose of
the objection petition afresh. The Executing Court can also consider
the need for the sale of property in view of the deposit made by the
) petitioner."
(
Learned counsel for the appellant in support of the appeal submitted H
'=I
t
368 SUPREME COURT Rll'ORTS 120061 2 S.C.R.

A that the High Court has lost sight of the fact that the sale was confirmed on
22.8.1983. The earlier petition filed in the execution proceedings was rejected
and the High Court also did not interfere. That matter had attained finality.
The subsequent execution proceeding for delivery was filed. The objection
filed by respondent related to the applicability of Article 134 of the Limitation
B Act and the High Court could not have examined the matter in the background
of Order XXI Rule 64 of the Code. It is further submitted that even conceding
for the sake of arguments that Article 134 of the Limitation Act had application,
the delay in filing the application is clearly attributable to the respondent
himself. He had filed the objection and after its dismissal by the trial Court
had moved the High Court.
c
In response, learned counsel for the respondent submitted that Article
134 of the Limitation Act dearly applies to the facts of the case. Though the
High Court did not advert to that provision yet for doing substantial justice
the Court had indicated the parameters of Order XXI Rule 64 of the Code.
Property measuring about 5 acres was sold for a paltry sum of Rs. four
D thousand. The judgment debtor had deposited Rs. 35,000 which was sufficient
to satisfy the decretal amount and the interest that would have earned had the
payment been made at the initial stage.
...
Order XXI Rule 64 reads as follows:
E "Power of order property attached to be sold and proceeds to be paid
to person entitled Any Court executing a decree may order that any
property attached by it and liable to sale, or such portion thereof, as
may seem necessary to satisfy the decree, shall be sold, and that the
proceeds of such sale, or a sufficient portion thereof, shall be paid to
F the party entitled under the decree to receive the same."

The provision contains some significant words. They are "necessary to
satisfy the decree". Use oft he said expression clearly indicates the legislative
intent that no sale can be allowed beyond the decretal amount mentioned in
the sale proclamation. (See Takkaseela Pedda Subba Reddi v. Pujari
G Padmavathamma, AIR ( 1977) SC I789). In all execution proceedings, Court
has to first decide whether it is necessary to bring the entire property to sale
or such portion thereof as nay seem necessary to satisfy the decree. If the
property is large and the decree to be satisfied is small the Court must bring
t
only such portion of the property the proceeds of which would be sufficient (

H to satisfy the claim of the de:cree holder. It is immaterial whether the property
BALAKRISHNAN v. MALAIYANDI KONAR [PASA YAT. J.] 369

is one or several. Even if the property is one, if a separate portion could be A
sold without violating any provision of law only such portion of the property
should be sold. This is not just a discretion but an obligation imposed on the
Court. The sale held without examining this aspect and not in conformity
with this mandatory requirement wou Id be illegal and without jurisdiction.
(See: Ambati Narasayya v. M. Subba Rao and Anr., [ 1989] Suppl. 2 SCC B
693). The duty cast upon the Court to sale only such portion or portion
thereof as is necessary to satisfy the decree is a mandate of the legislature
which cannot be ignored. Similar, view has been expressed in S. Mariyappa
(Dead) by LRs. and Ors. v. Siddappa and Anr., [2005] 10 SCC 235.

In S.S. Dayananda v. K.S. Nagesh Rao and Ors., [1997] 4 SCC 451 it C
was held that the procedural compliance of Order XXI Rule 64 of the Code
is a mandatory requirement. This was also the view expressed in Desh Sandhu
Gupta v. N.L. Anand and Rajinder Singh, [1994] l SCC 131.

Therefore, on the background facts noted by the High Court the auction
sale did not meet the requirements of law. But at the same time it appears that D
the question regarding the legality ofthe sale had attained finality because of
the confirmation of sale on 22.8.1983. Though it is contended by learned
counsel for the respondent that the order dated 10.9.1987 passed by the High
Court rejecting CRP 3963/1983 filed by the judgment debtor seeking relief,
-was relatable to the Debt Relief Act, that did not have the effect of reviving E
the question ielating to violation of Order XX! Rule 64 of the Code.

The residual question is the effect of Article 134 of the Limitation Act,
as appearing in the Schedule to the Limitation Act relatable to, Sections 20)
and 3 providing for periods of limitation. Article 134 reads as follows:
Description of Period of limitation Time from which F
application period begins to run

134. For delivery of One year
possession by a purchaser When the sale
G
of immovable property becomes absolute.
at a sale in execution of
a decree

. The limitation for the purpose of Article 134 starts from the date of
confirmation of sale. (See Ganpat Singh (dead) by lrs. v. Kai/ash Shankar H
+
370 SUPR[·ME COURT REPORTS 120061 2 S.C.R.

A and Ors., (1987] 3 sec 146 ). In Pattam Khader Khan V. Pattern Sardar
Khan and Anr.. (1996] 5 SCC 48 this court held that it is not from the date
when sale certificate is issued that the limitation starts running. The sale
becomes absolute on confirmation under Order XXI Rule 92 of the Code
effectively passing title. It cannot be said to attain finality only when sale
certificate is issued under Order XXI Rule 94. There can be variety of factors
B conceivable for which delay c:an be caused in issuing a sale certificate. The
period of one year limitation now prescribed under Article 134 of the
Limitation Act in substitution of a three year period prescribed under Article
180 of the Indian Limitation Act, 1908 is reflective of the legislative policy
of finalizing pr_oceedings in execution as quickly as possible by providing a
C quick forum to the auction purchaser to ask for the delivery of possession of
the property purchased within that period from the date of the sale becoming
absolute rather than from the date of issuance of the sale certificate. On this
failure to avail such a quick n!medy the law relegates him to the remedy of
a regular suit for possession based on title, subject again to limitation.

D Though it was submitted by learned counsel for the appellant that the
respondent was responsible for the delay caused as he had filed the Civil
Revision before the High Court, the plea is clearly untenable. The Civil
Revision Petition was dismissed on 10.09.1987. ...

Above being the position, we are not inclined to interfere in the matter.
E Though the question of applicability of Order XX! Rule 64 of the Code
should not have been considered by the High Court in view of the dismissal
of earlier Civil Revision Petition, even otherwise no relief could have been
granted to the appellant in view of Article 134 of the Limitation Act.
Substantive justice can be done: to the parties if the order passed by the High
F Court remitting the master is maintained. But the question that has to be
considered will not be the validity of the sale, but the maintainability of the
application for delivery of the property.

The appeal is accordingly dismissed. No costs.

G K.K.T. Appeal dismissed.

I
(