Supreme Court of India
GANPAT SINGH (DEAD) BY LRS.versusKAILASH SHANKAR & ORS.
- Citation
- 1987 INSC 160
- Decided
- 8 May 1987
- Disposal
- Disposed off
- Bench
- E S VENKATARAMIAH
Holding
Article 134 of the Limitation Act, 1963, and not Article 136, applies to an application under Order XXI Rule 95 for delivery of possession of property sold in execution of a decree.
Summary
The decree‑holder, who had purchased a mortgaged property at a court auction, filed an application under Order XXI Rule 95 CPC for delivery of possession more than a year after the sale was confirmed. The judgment‑debtors opposed, arguing that the application was barred by the one‑year limitation in Article 134 of the Limitation Act, 1963. The District Judge and the Rajasthan High Court held that Explanation II to Section 47 CPC made the purchaser a party to the suit and that the 12‑year period of Article 136 applied, effectively implying a repeal of Article 134. The Supreme Court rejected this view, holding that Article 134, not Article 136, governs the limitation for a Rule‑95 application, that Explanation II does not alter the limitation period, and that the limitation starts from the date the sale becomes absolute. Consequently, the Court set aside the lower courts' judgments and ordered settlement of the dispute.
Issues considered
- Whether an application under Order XXI Rule 95 for delivery of possession by an auction‑purchaser is governed by Article 134 or Article 136 of the Limitation Act, 1963.
- Whether Explanation II to Section 47 of the CPC, introduced by the CPC (Amendment) Act, 1976, changes the applicable period of limitation.
- Whether Article 134 is impliedly repealed by Section 47 CPC read with Article 136 of the Limitation Act.
- When the limitation period under Article 134 commences – from the date the sale becomes absolute or from the dismissal of subsequent applications to set aside the sale.
Legislation cited
- Code of Civil Procedure, 1908s. Explanation II, s. Order XXI Rule 89, s. Order XXI Rule 90, s. Order XXI Rule 92, s. Order XXI Rule 95, s. Section 47
- Code of Civil Procedure (Amendment) Act, 1974s. Section 20
- Code of Civil Procedure (Amendment) Act, 1976s. Explanation II
- Limitation Act, 1963s. Article 127, s. Article 134, s. Article 136
Subjects
Limitation ActArticle 134Article 136Civil Procedure CodeOrder XXI Rule 95auction purchaserpossessionsale in executionimplied repealExplanation IImortgage decree
Judgment
••
GANPAT SINGH (DEAD) BY LRS.
v. A·
KAILASH SHANKAR & ORS.
MAY 8, 1987.
[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.] B
Limitation Act, 1963: Articles 134 & 136-Scope and
applicability of-Application by auction purchaser under Order
XXI Rule 95 CPC for delivery of possession of property sold in
execution of decree-Period of limitation prescribed in Article
134 and not Article 136 applicable-Position not changed by C
insertion of Explanation II to Section 47 CPC by CPC (Amendment)
Act 1976.
Civil Procedure Code 1908: Application for delivery of
possession cannot be equated to an application for execution of D
decree.
The mortgagee decree-holder in execution of the final decree for
mortgage, himself purchased the disputed property in the auction sale
held on July 14, 1978. On September 20, 1978 the judgment-debtor, the
predecessor-in-interest of the appellants, filed an application under E
Order XXI Rule 90 of the Code of Civil Procedure for setting aside the
aforesaid sale. Two other petitions of objections were filed, one of these
being by another judgment-debtor. All these objections including the
application under Order XXI Rule 90 of the Code of Civil Procedure
were dismissed for default. Consequently, the sale was confirmed by the
District Judge, the executing Court on January 2, 1979. F
On July 17, 1980 more than one year after the sale was confirmed
the decree-holder auction-purchaser rited an application under Order
XXI Rule 95 of the Code of Civil Procedure for delivery of possession of
the property auctioned-purchased by him. This application was G
opposed by the judgment-debtor on the ground that as the application
was filed more than one year after the confirmation of sale it was barred
by limitation under Article 134 of the Limitation Act.
The District Judge held that in view of Explanation II of Section
47 which was inserted in the Code of Civil Procedure, by Section 20 of H
355
356 SUPREME COURT REPORTS [1987] 3.S.C.R.
A the Code of Civil Procedure (Amendment) Act, 1974, Article 136 pres·
crlbing a period of limitation of 12 years for the execution of the decree
and not Article 134 of the Limitation Act would be applicable, and held
that the application was not barred by limitation and directed issuance
of the warrant of possession in respect of the disputed property.
B
The judgment-debtor filed a revision application under section
115 of the Code of Civil Procedure and a Single Judge of the High Court
dismissed the revision application. The High Court held that after the
Insertion of Explanation II to Section 47 of the Code' of Civil Procedure,
•
the purchaser of property at a sale in execution of a decree would be
deemed to be a party to the suit in which the decree was passed, and all
C questions relating to the delivery of possession of the property to such
purchaser of immovable property would be questions relating to the
execution of the decree and, as such, Article 136 and not Article 134 of
the Limitation Act would apply. It was also held after the amendment of
the Code of Civil Procedure, Article 134 and Article 13'i of the Li mita·
D lion act became so inconsistent that both could not exist and that Article
134 stood Impliedly repealed by Section 47 of the Code of Civil Proce·
dure read with Article 13'i of the Limitation Act.
A certificate for appeal to this Court under Article 134A of the
Constitution, was granted by the Single Judge.
E
As the certificate on the basis of which the appeal was filed was
not competent in view of clause III of Article 133, the appeal was
treated as one under Article 13'i.
After conclusion of the hearing, the parties settled the dispute, the
F respondent decree-holder agreeing to relinquish all his rights as the
auction-purchaser upon the appellants paying an agreed amount.
In spile of such settlement the Court felt the necessity· of laying
down the correct legal position.
G Setting aside the judgment of the Single Judge of the High Court
and that of the District Court, ·f ~
HELD: 1. Article 134 of the Limitation Act, 1963 would apply to
an application under Order XXI Rule 95 of the Code of Civil Procedure
by the auction-purchaser for delivery of possession of the property sold
H in execution ofa decree. [3'i3G]
-
GANPAT v. KAILASH 357
•J 2. The Single Judge of the High Court has misunderstood the A
scope of the provision of section 47 of the Code of Civil Procedure and
that of the provisions of Articles 134 and 136 of the Limitation Act,
1963. It may be that before the amendment of section 47, an auction-
purchaser could file a suit for recovery of the possession of the property
within 12 years from the date of the sale, but in view of the amendment
of Section 47 of the Code such a suit cannot be filed. But that is no B
ground for holding that Article 136 of the Limitation Act would apply to
an application for delivery of possession. [363C-D]
3. It is for the Legislature to prescribe the period of Limitation,
- and the Court is only to see whether any particular application has been
filed within that period. [363F] C
4. When a property is sold in execution of a decree an application
for setting aside the sale may be made under Rule 89, 90 or 91 of Order
XXI of the Code of Civil Procedure by the persons and on the ground
mentioned therein. Such an application has also to be made w1lhin the
prescribed period of limitation of 60 days from the date of the sale D
under Article 127 of the Limitation Act, 1963. Article 134 prescribes a
limitation of one year for an application for delivery of possession by a
purchaser of immovable property at a sale in execution ofa decree. The
limitation of one year will be computed from the date fhe sale becomes
absolute. Such an application for delivery of possession can be filed only
after the decree is put into execution within the period of limitation as E
prescribed by Article 136 of the Limitation Act. [3628-D]
5. The period of limitation prescribed by Articles 1.36 and 134 are
for two different purposes, the former being for the execution of a
decree for possession in respect of which the decree is passed, and the
latter for an application for delivery of possession of immovable pro- F
perty which is purchased in the course of execution of a decree. The two
articles have nothing in common for their operation. They do not stand
in conflict with each other. [3620-E]
6. The scope of Articles 134 and 136 and the subject-matter being
t completely different, the question of implied repeal of Article 134, does G
not at all arise. [363F]
7. Merely because Explanation II to Section 47 CPC was inserted
by the C.P.C. (Amendment) Act 1976, an application for delivery of
possession under Order XXI Rule 95 C.P.C. cannot be equated with an
application for the execution of a decree for possession so as to apply 12 H
-
358 SUPREME COURT REPORTS [1987] 3.S.C.R.
A years period of limitation as prescribed by Article 136 of the Limitation ,\_
Act. [362F-G]
8. An application for delivery of possession of immovable pro-
perty purchased in execution cannot, by any stretch of imagination, be
construed as an application for execution of a decree for possession of
B property so as to invoke the provision of Article 136 of the Limitation
Act. [362E]
9. After a sale becomes absolute on the dismissal of the applica-
tion of the judgment-debtor's claim for setting aside the sale, another
application for setting aside the sale by the judgment-debtor is not
C maintainable and the period of limitation as prtscribed by Article 134
of the Limitation Act cannot be computed from the date of the dismissal
-
of the second application for setting aside the sale. [366H; 367 A]
10. In the instant case, on January 2, 1979 while dismissing the
application of the judgment-debtor under Order XXI Rule 90 the Dis-
D trict Judge confirmed the sale. The said order confirming the sale is
binding not only on the judgment-<Jebtor, who made the application
under Order XXI Rule 90, but also on all other parties to the execution
proceedings including the 4th judgment-debtor. Accordingly, there can
be no doubt that the application filed by the 4th judgment-debtor pray-
ing for setting aside of the sale on grounds other than those mentioned
E in Rules 89 to 91 was not maintainable after the confirmation of the
sale. By the order dated July 21, 1979 the District Judge while dismis-
sing the application of the judgment-debtor observed that after the
confirmation of the sale the Court was not authorised to entertain the
application. The application of the judgment-debtor not beiitg maln-
tainable in law, the respondent decree-holder was not entitled to com-
F pute the period of one year under Article 134 of the Limitation Act from
the date of dismissal of the second application by the 4th judgment-
debtor. [365C-E; 368B]
Chandra Mani Sahai & Ors. v. Anarjan Bibi & Ors., AIR 1934
PC 134 Kamakshi Ammal & Anr. v. Arukkani Ammal & Ors., AIR
G 1957 Madras 440 explained and distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2841
of 1986.
From the Judgment and Order dated 9.4.1986 of the Rajastban
H High Court in S.B. Civil Revision No. 11of1981.
-
GANPAT v. KAILASH [DUTT, J.] 359
).. V.M. Tarkunde, S. Atreya, Virendra Bandhu and Indra A
Makwana for the Appellants.
T.S. Krishnamurthy Iyer and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by
B
DUTT, J. This appeal on a certificate granted under Article
134A of the Constitution of India is at the instance of the heirs and
legal representatives of a deceased judgment-debtor and is directed
against the judgment of a learned Single Judge of the Rajasthan High
Court whereby the learned Judge upheld the order dated December
12, 1980 of the learned District Judge, Jaipur City, Jaipur, holding that C
in view of Article 136 of the Limitation Act, 1963 the application of the
decree-holder auction-purchaser for delivery of possession of the
property auctioned-purchased by him was maintainable and not barred
by limitation. The certificate on the basis of which the appeal is filed is
not competent in view of clause (3) of Article 133 of the Constitution,
we have however treated the appeal as one under Article 136 of the D
Constitution. The special leave to file the appeal is granted by us.
The mortgagee decree-holder in execution of the final decree for
mortgage himself purchase the disputed property in the auction-sale
held on July 14, 1978 at a sum of Rs.30,000. On September 20, 1978,
the judgment-debtor Ganpat Singh, since deceased, the predecessor- E
in-interest of the appellants, filed an application under Order XXI
Rule 90 of the Code of Civil Procedure for setting aside the sale. Two
other petitions of objections were filed by one Chiranji Lal and by
another judgment-debtor, Mst. Abbey Kanwar. All these objections
including the application of Ganpat Singh under Order XXI Rule 90 of
the Code of Civil Procedure, were dismissed for default and, conse- F
quently, the sale was confirmed by the learned district Judge, the
executing court, on January 2, 1979.
On July 17, 1980, that is, more than one year after the sale was
confirmed, the decree-holder auction-purchaser filed an application
under Order XXI Rule 95 of the Code of Civil Procedure for delivery G
~ of possession of the property auctioned-purchased by him. The said
application was opposed by the judgment-debtor Ganpat Singh on the
ground that as the application was filed more than one year after the
confirmation of sale, it was barred by limitation under Article 134 of
the Limitation Act.
H
360 SUPREME COURT REPORTS (1987] 3.S.C.R.
It was held by the learned District Judge that in view of the
A
provision of Explanation II of section 47 which was inserted in the
Code by Section 20 of the Code of Civil Procedure (Amendment) Act,
1974, Article 136 prescribing a period of limitation of 12 years for the
execution of the decree and not Article 134 of the Limitation Act
would apply. In that view of the matter, the learned District Judge
B held that the application was not barred by limitation as contended on
behalf of the judgment-debtor and directed issuance of the warrant of
possession in respect of the disputed property.
Being aggrieved by the said order of the learned District Judge,
the judgment-debtor filed a revisional application under section 115 of
the Code of Civil Procedure before a learned Single Judge of the High
c Court. The view expressed by the learned District Judge commended
to the learved Judge of the High Court. The learned Judge took a
similar view that aft~r the insertion of Explanation II to Section 47 of
the Code of Civil Procedure, a purchaser of property at a sale in
execution of a decree would be deemed to be a party to the suit in
D which the decree was passed and all questions relating to the delivery
of possession of the property to such purchaser of immovable property
would be questions relating to the execution of the decree and, as
such, Article 136 and not Article 134 of the Limitation Act would
apply. Further, the learned Judge held, inter alia, that after the
amendment of the Code of Civil Procedure, Article 134 and Article
E 136 of the Limitation Act became so inconsistent that both could not
exist and, relying upon the principle that in cases where two articles are
equally applicable, the rule that the article which keeps alive the right
of the party must be preferred, the learned Judge held that Article 134
stood impliedly repealed of section 47 of the Code of Civil Procedure
read with Article 136 of the Limitation Act. In that view of the matter,
F the learned Judge • dismissed the revisional application of the judg-
ment-debtor under section 115 of the Code of Civil Procedure. The '
learned Judge, however, granted a certificate to the appellants for
appeal to this Court under Article 134A of the Constitution of India.
Hence this appeal.
G At this stage, it may be stated that the parties have settled their
disputes after the hearing was concluded, the respondent decree-
holder having agreed to relinquish all his rights as the auction-
purchaser upon the appellants paying him a sum of Rs.1,28,000. The
terms of such settlement will be stated hereafter. In spite of such
settlement, we think we should consider the view expressed by the
H learned district Judge and the learned Single Judge of the High Court
GANPAT v. KAILASH [DUTT, J.] 361
that after the amendment of section 47 of the Code of Civil Procedure, A
an application under Order XXI Rule 95 of the Code will be governed
by Article 136 of the Limitation Act and that, as held by the learned
Judge of the High Court, Article 134 stands impliedly repealed by
section 47 read with Article 136 of the Limitation Act.
. f- Both the learned District Judge and the learned Judge of the
High Court have been greatly influenced by the fact of the insertion of
B
Explanation II under section 47 by the Code of Civil Procedure
" (Amendment) Act, 1976. Explanation II provides as follows:-
"Explanation II. (a) For the purposes of this section, a
purchaser of property at ~ sale in execution of a decree
shall be deemed to be a party to the suit in which the decree
c
is passed; and
(b) all questions relating to the delivery of possession
of such property to such purchaser or his representative
shall be deemed to be questions relating to the execution, D
discharge or satisfaction of the decree within the meaning
of this section."
Under clause (a) of Explanation II the auction-purchaser shall be
deemed to be a party to the suit in which the decree is passed. Under
clause (c), all questions relating to the delivery of possession shall be E
deemed to be questions relating to the execution, discharge OF satisfac-
~~
lion of the decree within the meaning of section 47. Section 47 bars
determination of any question relating to the execution, discharge or
satisfaction of the decree in a suit. Such question shall be determined
""---4 by the executing court. As has been already noticed, in view of clause
(a) of Explanation II, the _auction-purchaser shall be deemed to be a F
party to the suit in which the decree is passed and under clause (b) of
Explanation II all questions relating to delivery of possession shall be
deemed to be questions relating to the execution, discharge or satisfac-
lion of the decree. Such questions, therefore, are to be determined by
the court executing the decree and not by a separate suit.
-' ~ G
Section 47 itself has nothing to do with the question of limitation.
Article 136 prescribes a period of limitation of 12 years for the execu-
tion of a decree from the date on which the decree or order becomes
enforceable or where the decree or any subsequent order directs any
payment of money or the delivery of any property to be made at a
certain date or at recurring periods when default in making any H
·-
362 SUPREME COURT REPORTS [1987) 3.S.C.R.
A payment or delivery in respect of which execution is sought, takes
place. After a decree is out into execution within the period of limita-
tion under Article 136, questions relating to execution, discharge or
satisfaction of the decree may arise and such questions including the
question as to the delivery of possession shall be determined by the
executing court. When a property is sold in execution of a decree, an
B application for setting aside the sale may be made under Rules 89, 90
or 91 of Order XXI of the Code of Civil Procedure by the persons and
on grounds as mentioned therein. Such an application has also to be
made within the prescribed period of limitation of sixty days from the
date of sale under Article 127 of the Limitation Act, 1963. Article 134
prescribes a limitation of one year for an application for delivery of
C possession by a purchaser of immovable property at a sale in execution
of a decree. The limitation of one year will be computed from the date
the sale becomes absolute. Such an application for delivery of posses-
sion can be filed only after the decree is put into execution within the
period of limitation as prescribed by Article 136 of the Limitation Act.
The periods of limitation prescribed by Articles 136 and 134 are for
D two different purposes, the former being for the execution of a decree
for possession in respect of which decree is passed and the latter for an
application for delivery of possession of immovable property which is
purchased in the course of execution of a decree. The two articles have
nothing in common for their operation and it is not readily understand-
able how the two articles stand in conflict with each other. An applica-
E tion for delivery of possession of immovable property purchased in
execution cannot, by any stretch of imagination, be construed as an
application for execution of a decree for possession of property so as to
invoke the provision of Article 136 of the Limitation Act. Merely
because the auction-purchaser will be deemed to be a party in the suit
in which the decree has been passed, as provided in clause (a) of
F Explanation II to section 47 of the Code, and by virtue of clause (b) of
Explanation II all questions relating to delivery of possession of the
property shall be deemed to be questions relating to execution, dis-
charge or satisfaction of the decree within the meaning of section 47,
an application for delivery of possession under Order XXI Rule 95 of
the Code of Civil Procedure cannot be equated with an application for
G the execution of a decree for possession so as to apply 12 years' period ~
of limitation as prescribed by Article 136 of the Limitation Act.
If it is held that Article 136 would apply to an application for
delivery of possession under Order XXI Rule 95 of the Code, it may
lead to an absurdity. Suppose a decree is put into execution on the last
H day of limitation of 12 years. Obviously, the sale of any property in
GANPAT v. KAJLASH [DUTT, J.) 363
}- execution of the decree will take place after the expiry of 12 years and, A
therefore, no application for delivery of possession of the property of
the ~uction-purchaser will be maintainable as 12 years have already
passed from the date of the decree. If Article 136 is held to apply to an
I
application for delivery of possession, then for 'the very same reason it
will also apply to an application for setting aside sale. In other words,
an application for setting aside sale can also be made within a period of B
}-.
12 years from the date of decree irrespective of the date of sale, which
is absurd on the face of it.
~
It appears that the learned Judge of the High Court has misun-
derstood the scope of the provision of section 47 of the Code of Civil
J~
Procedure and that of the provisions of Articles 134 and 136 of the c
Limitation Act, 1963. It may be that before the amendment of section
47 of the Code, an auction-purchaser could file a suit for recovery of
possession of the property within 12 years from the date of sale, but in
view of the amendment of section 47 of the Code such a suit cannot be
filed. But that is no ground for holding that Article 136 of the Limita-
tion Act would apply to an application for delivery of possession. D
)' Under the old Limitation Act of 1908, an application for delivery of
possession could be made within three years from the date on which
sale became absolute as prescribed by Article 180 of that Act, but
under Article 134 of the Limitation Act, 1953 such an application can
be made within one year from the date on which sale became absolute.
Thus the period of limitation for delivery of possession of property E
~ ___.,,_ purchased at the court sale has been reduced to a considerable extent,
but that also cannot be taken into consideration for the purpose of
interpretation of the provisions of the Limitation Act. It is for the
Legislature to prescribe the period and the Court is only to see
-~ whether any particular application has been filed within that period. In
the instant case, as stated already; the scope of Articles 134 and 136 F
and their subject-matters being completely different, the question of
implied repeal of Article 134, as held by the learned Judge of the High
Court, does not at all arise. We would, accordingly, hold that Article
134 will apply to an application under Order XXI Rule 95 of the Code
of Civil Procedure by the auction-purchaser for delivery of possession
~ of the property sold in execution of a decree. G
~
It may be mentioned here that Mr. Krishnamurthy Iyer, learned
Counsel appearing on behalf of the decree-holder respondent, has not
made any attempt to support the judgment of the High Court on the
ground of amendment of section 47 of the Code of Civil Procedure or
on the ground of implied repeal of Article 134 of the Limitation Act by H
364 SUPREME COURT REPORTS (1987] 3.S.C.R.
A the amended section 47 of the Code read with Article 136 of the ~
Limitation Act. On the contrary, it is contended by him that there carr
be no doubt that limitation under Article 134 commences from the
date when the sale becomes absolute. He has, however, sought to
support the conclusion of the learned Judge of the High Court that the
application for delivery of possession of the property is not barred by
B limitation on another groups which will be stated presently. Under
Order XXI Rule 92 where no application is made under Rule 89, Rule
90 or Rule 91 where such application is made and disaUowed, the court
I
shall make an order confirming the sale, and thereupon the sale shall
become absolute. It is submitted by the learned Counsel that it is not
correct that the sale becomes absolute only under the circumstances as
C mentioned in Rule 92, and that apart from the provisions of Rules 89,
90 and 91 of Order XXI of the Code, an auction-sale can be challenged
on grounds other than those mc.ntioned in the said Rules. Counsel
submits that if an application for setting aside sale is made and dis-
posed of, the sale will become absolute after the disposal of such
application, even though the application is not one as contemplated by
D Rules 89, 90 or 91 of Order XXI of the Code.
In this connection, the learned Counsel has drawn our attention
to an application for setting aside the sale made by the 4th judgment-
debtor on January 27, 1979 on grounds other than those mentioned in
Rules 89, 90, or 91. But the said application was dismissed by the
E learned district Judge on July 21, 1979. It is submitted by the learned
Counsel that on the disposal of that application on July 21, 1979, the
sale became absolute and the decree-holder respondent having filed ... ~ --
the application for delivery of possession on July 17, 1980, that is,
within one year from July 21, 1979, it should be held that the applica-
tion was quite within the period of limitation as prescribed by Article
F 134 of the Limitation Act. In support of the contention, the learned
Counsel has placed reliance upon a decision of the Privy Council in
Chandra Mani Saha and others v. Anarjan Bibi and others, AIR 1984
PC 134. In that case, in interpreting the words "when the sale becomes
absolute" in Article 180 of the old Limitation Act, '1908, the Privy
Council observed as follows:-
G
" Upon consideration of the sections and orders of the 1
Code, their Lordships are of opinion that in construing the
meaning of the words "when the sale becomes absolute" in
Art. 180, Lim. Act, regard must be had not only to the
provisions of 0. 21. R. 92(1) of the schedule to the Civil
H Procedure Code, but also to the other material sections and
--- --·--·~----.- ·····~- ,,,__ ... ._
GANPAT '· KAILASH [DUTT, J.] 365
J orders of the Code, including those which relate to appeals
from orders made.under 0. 21, R. 92(1). The result is that
A
where there is an appeal from an order of the Subordinate
Judge, disallowing the application to set aside the sale, the
sale will not become absolute within the meaning of Art.
180, Lim. Act, until the disposal of the appeal, even though
the subordinate Judge may have confirmed the sale, as he B
was bound to do, when he decided to disallow the above
mentioned application.
We may now consider the above contention of the learned
Counsel for the respondent decree-holder. It has been already noticed
that on January 2, 1979 while dismissing the application of the C
judgment-debtor under Order XXI Rule 90 of the Code of Civil Proce-
dure, the learned District Judge also confirmed the sale. The said
order of the learned District Judge confirming the sale is binding not
only on the judgment-debtor, who made the application under Order
21 Rule 90, but also on all other parties to the execution proceedings
including the 4th judgment-debtor. Accordingly, there can be no D
doubt that the application filed by the 4th judgment-debtor praying for
the setting aside of the sale on grounds other than those mentioned in
Rules 89, 90 and 91, was not maintainable after the confirmation of the
sale, Indeed, by the order dated July 21, 1979 the learned District
Judge while dismissing the application of the 4th judgment-debtor
observed that after the confirmation of the sale, the court was not E
authorised to entertain the application. We do not think that the deci-
sion of the Privy Cuuncil in Chandra Mani's case (supra) lends any
support to the contention of the learned Counsel for the respondent
decree-holder that an auction-sale can be set aside even on grounds
other than those mentioned in Rules 89, 90 and 91. All that has been
ruled in that decision is that in construing the meaning of the words F
"when the sale becomes absolute" in Article 180 of the old Limitation
Act, regard must be had not only to the provision of Order XXI Rule
92( 1) of the Code, but also to the other material sections and orders of
the Code including thos~ which relate to appeals from orders made
under Order XXI Rule 92(1). No provision of the Code has been
f
, pointed out to us under which a sale can be set aside apart from the G
r provisions of Rules 89, 90 and 91 of order XX! of the Code. There can
be no doubt that when an application for setting aside the sale is made,
the order passed by the executing court either allowing or dismissing
the application will be final and effective subject to an appeal that may
be made under the provisions of the Code. It is inconceivable that even
though no appeal has been filed against an order dismissing an applica- H
366 SUPREME COURT REPORTS [1987] 3.S.C.R.
tion for setting aside the sale, another application for setting aside the
A
sale can be made without first having the order set aside. Such an
application will be barred by the principle of res judicata. In the
circumstances, there is no merit in the conten,tion made on behalf of
the respondent decree-holder that the application for delivery of pos-
session having been made within one year of the dismissal of the appli-
B cation of the 4th judgment-debtor for setting aside the sale, it was
within the period of limitation as prescribed by Article 134 of the
Limitation Act.
In Kamakshi Amma/ and another v. Arukkani Ammal and
another, AIR 1957 Mad. 440, which has been relied on by the learned
Counsel for the decree-holder respondent, there was an application
c under Order XXI Rule 58 of the Code of Civil Procedure by one
Nagammal who claimed under a possessory mortgage and that claim
was allowed on June 14, 1913. The decree-holder filed a suit to set
aside this claim as she was entitled to do under the Code before it was
amended in 1976. The suit terminated in a compromise decree on
D August 15, 1944 and the application under Order XXI Rule 95 of the
Code was made by the decree-holder on August 14, 1947, that is,
within three years from the date when the claim-suit was disposed of.
It was held by the Madras High Court that the sale could not be said to
have become absolute till the claim-suit was finally disposed of on
August 15, 1944. In holding that, the Madras High Court has placed
E reliance upon the decision of the Privy Council in Chandra Mani's case
(supra) to the effect that though the third column of Article 190 of the
old Limitation Act refers to the date when the sale becomes absolute,
that clause must be read not only with the provision of Order XXI
Rule 92( 1) of the Code, but also with the other material provisions and
orders of the Code.
F
In our opinion the above dec;sion of the Madras High Court in
Kamakshi Ammal's case does not support the contention of the
respondent decree-holder. Order XXI Rule 58 of the Code is a mate-
rial provision relating to any claim that may be preferred or any objec-
tion that may be made to the attachment of any property in execution
G of a decree. Any sale that is held would, undoubtedly, be subject to -1'
the order that may be passed under Order XXI Rule 58 of the Code
and, thereafter, as provided in the Code before its amendment in 1976,
the result of a suit that may be filed challenging such order passed by
the executing court under Order XXI Rule 58. But after a sale be-
comes absolute on the dismissal of the application of the judgment-
H debtor's claim for setting aside the sale, another application for setting
GANPAT v. KAILASH [DUTT. J.J 367
aside the sale by the judgment-debtor is not maintainable and the
period of limitation as prescribed by Article 134 of the Limitation Act
A
cannot be computed from the date of the dismissal of the second
application for setting aside the sale.
The decision of the Madras High Court in Dadrabahu Nainar v.
Devendra Nainar, ILR (1969) 1 Mad. 175, relied on by the respondent B
decree-holder, does not appear to be of any assitance to him. In that
case, the Madras High Court has only followed the decision of the
Privy Council in Chandra Mani's case (supra). In an earlier decision of
the Full Bench of the Madras High Court in Muthu Korakkai Chetty v.
Madar Ammal, ILR 43 Mad. 185 FD, also relied on by the respondent
decree-holder, what happened was that after an auction-sale had been
confirmed without opposition on April 26, 1918, an application was c
made on January 13, 1918 to set it aside on the ground of fraud, and it
was set aside on June 25, 1918 in respect of a part of the properties
sold. The auction-purchaser applied on February 17, 1917 for delivery
of the remaining properties. It was held by the Full bench that the
application was not barred under Article 180 of the old Limitation Act D
as time should be computed from the date of the order disallowing the
petition to set aside the sale on the ground of fraud and not from the
date of the first confirmation. This decision has been strongly re.lied
upon by the learned Counsel for the respondent decree-holder and it is
submitted that even though the application for setting aside the sale on
the ground of fraud was made after the sale was confirmed, the Full E
Bench took the view that the period of limitation under Article 180 of
-~-
the old Limitation Act should be computed from the date of the order
disallowing the application to set aside the sale on the ground of fraud
and not from the date of the first confirmation. On the basis of this
decision, it is urged that in the instant case also the period of limitation
"·'"""' under Article 134 should be computed from the date of dismissal of the F
second application for setting aside the sale.
We are enable to accept the contention. In the Full Bench deci-
sion of the Madras High Court the application for setting aside the sale
was made by the sons of a deceased judgment-debtor and the remain-
~ ing judgment-debtors, and the application in so far as it was made by G
the sons of a deceased judgment-debtor was admitted out of due time
on the ground of fraud. In our opinion the High Court was justified in
entertaining the application on the ground of fraud by the sons of a
deceased judgment-debtor who were not brought on the record as the
legal representatives of their deceased father. The application was,
therefore, quite maintainable and, even though the sale was confirmed H
368 SUPREME COURT REPORTS [1987] 3.S.C.R ..
and became absolute under Order XX! Rule 92, it was subject to the
A
disposal of the application for setting aside the sale on the ground of
fraud. The facts of this decision are quite different from those of the
instant case before us. The application by the judgment-debtor not
being maintainable in law, the respondent decree-holder was not
entitled to compute the period of one year under Article 134 of the
B Limitation Act from the date of dismissal of the second application by
the 4th judgment-debtor. The contention made on behalf of the
respondent decree-holder is without substance and is overruled.
In view of the discussion made above, we set aside the judgment
of the learned Single Judge of the High Court and that of the learned
District Judge.
c As stated already, the parties have settled their disputes, the
respondent decree-holder having decree to relinquish all this rights as -1
the auction-purchaser upon the appellants paying him a sum of
Rs.1,28,000. We are told that said sum has been deposi\ed in this
Court in the above appeal and, as prayed for by the parties, we by our
D order dated May 5, 1987 set aside the execution sale and directed that
the amount of Rs.'1,28,000 lying in this Court would be paid to the ·-f
respondent decree-holder or to his Counsel·in full settlement of the
mortgage decree. By the said order we have also recorded full satisfac-
tion of the mortgage decree passed in S.C. No. 10/73 on the file of the
District Judge, Jaipur City, obtained by the respondent decree holder
E against the appellants and others. It has also bee9 recorded in the
order that the decree-holder auction-purchaser has• no so.rt of claim ·-"'"'
against the appellants under the mortgage deed in •1uestion or the
decree passed thereon. The two suits which have been filed by the
decree-holder auction-purchaser against the Posts & Telegraph
Department for recovery of arrears of rent in respect of the suit pre- )..
F mises have, on the pr~yer made on behalf of the decree-holder
auction-purchaser, been directed to be dismissed by the Trial Court
without costs, since the money payable thereunder has been deposited
in this Court by the Posts & Telegraph Department. The Posts &
Telegraph Department has been directed to pay the rent of the pre-
mises in suit in their occupation including arrears, if any, which may
G have accrued subsequent to the period for which rent has already been -1
deposited in this Court, to the appellant treating them a> landlords.
Even though the matter has been settled between the parties as
above, we felt the necessity of laying down the correct legal position
and, hence, this Judgment.
H N.V.K.
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