P.P. Muraleedharan v. Remani, K. Sunil Kumar and Ammini

OP(C) NO. 1094 OF 2013 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 OP(C) NO. 1094 OF 2013** **AGAINST THE ORDER/JUDGMENT IN EP 237/2010 IN OS 50/2002** **OF MUNSIFF COURT, NORTH PARAVUR** ## **PETITIONER/S:** P.P. MURALEEDHARAN AGED 39 YEARS PADATHINAKATHU HOUSE, KIZHAKKUMPURAM MURI, CHENNAMANGALAM VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, SAJANI MURALEEDHARAN, W/O.MURALEEDHARAN, PADATHINAKATHU HOUSE, KIZHAKKUMPURAM MURI, CHENNAMANGALAM VILLAGE. BY ADV SRI.GEORGE SEBASTIAN ## **RESPONDENT/S:** 1 REMANI AGED 63 YEARS W/O.APPU, PERINGADANPARAMBU, PERIOKAPALATH HOUSE, THOTTAKKATTUKARA, ALUVA.683108 2 K.SUNIL KUMAR AGED 44 YEARS S/O.PARAMESWARAN, OORAMBATH VEEDU, PATHARITHARA PEZHAYANOOR VILLAGE, THALAPPILLY TALUK, TRICHUR DISTRICT.680609 3 AMMINI AGED 65 YEARS W/O.PARAMESWARAN, OORAMBATH VEEDU, PATHARITHARA PEZHAYANOOR VILLAGE, THALAPPILLY TALUK, TRICHUR DISTRICT.680609 BY ADVS. Jino Jose Kallarackal 2 OP(C) NO. 1094 OF 2013 BIMALA BABY(K/687/2004) BLAISE JOSEPH(K/2023/2019) MAGI PAVITHRAN(K/1324/2022) ROSHAN SHAJI(K/001003/2022) PAUL A.J.(K/000703/2022) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1094 OF 2013 3 ## **JUDGMENT** The original petition is filed challenging the order dated 29.09.2012 passed by the Court of the Munsiff N.Paravur in E.P.No.237/2010 in O.S.No.50/2002. 2. The petitioner's case, in a nutshell, relevant for the determination of the original petition is that, he is the auction purchaser, who had purchased the property of the respondents 2 and 3, which was put up in sale in the above execution petition filed by the 1[st] respondent. Ext.P1 is the sale certificate that is issued in his favour. The respondents 2 and 3 had filed an application to set aside the sale. The same was dismissed by the Execution Court by Ext.P2 order. Challenging Ext.P2, the respondents 2 and 3 had filed CMA No.44/2007 before the Court of the Additional District Judge, N.Paravur. The learned District Judge had by Ext.P3 order dismissed the OP(C) NO. 1094 OF 2013 4 appeal also. Thereafter, the respondents 2 and 3 had challenged the concurrent orders by filing C.R.P.No.608/2008 before this Court. The revision petition was dismissed for non-prosecution. Then the petitioner had filed Ext.P5 application before the Execution Court, to effect delivery of the property covered by Ext.P1 sale certificate to him. The 1[st] respondent – decree holder – objected to Ext.P5 by filing Ext.P6 objection. The 3[rd] respondent also filed Ext.P7 counter affidavit to Ext.P5 application. The Execution Court, without appreciating Ext.P5 application in its proper perspective, passed the impugned Ext.P8 order, rejecting Ext.P5 application. Ext.P8 is ex facie illegal and unsustainable in law. Hence, the original petition. 3. Heard; Sri. George Sebastian, the learned counsel appearing for the petitioner and Smt.Bimala Baby, the learned counsel appearing for the 1[st] OP(C) NO. 1094 OF 2013 5 respondent. 4. The limitation period for filing an application for delivery of possession of a property purchased in an execution proceeding is no longer resintegra in the light of the categoric declaration of law by the Full Bench of this Court in **Danish Varghese vs. Jancy Danish** [2021 (1) KHC 1 (FB)], wherein, in paragraph 19 of the judgment, it is declared as follows: 19. Under Section 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 Rule 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 Rule 95. Above judicial precedents reiterate that the date when the sale becomes absolute as referred in Article 134 need not correspond to the date of sale or to OP(C) NO. 1094 OF 2013 6 the date of issuance of sale certificate or passing of the order making the sale absolute under Order XXI Rule 92. Passing of such an order under Order XXI Rule 92 is mandatory obligation of the executing court, if no application is made under Rules 89,90 and 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 Article 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 Article 134 and not when sale was confirmed. **So long as revision filed against an order passed in the Court of execution proceedings 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 Section 134 of the Limitation Act, 1973.** 5. Thus, a sale becomes absolute only after culmination of all the proceedings between the OP(C) NO. 1094 OF 2013 **==> picture [7 x 9] intentionally omitted <==** parties to the 'lis' and only, thereafter, the time period starts to run under Section 134 of the Limitation Act, 1973. 6. In the case at hand, admittedly Ext.P4 judgment was passed by this Court only on 07.04.2010. The petitioner has filed Ext.P5 application for delivery of possession of the property covered by Ext.P1 on 25.11.2010, that is well within the time period of one year. Nonetheless, the Court below, holding that there is no merger of the decree of the Trial Court with the decree of the Appellate Court, has erroneously rejected Ext.P5 application. 7. In the light of the law laid down in **Danish Varghese** (supra) and the fact that the petitioner had filed Ext.P5 application within one year from the culmination of Ext.P4 proceeding, I hold that Ext.P8 order is erroneous and wrong, and needs to be interfered by this Court under Article 227 of the OP(C) NO. 1094 OF 2013 8 Constitution of India. In the result, the original petition is allowed as follows: 1. Ext.P8 order is set aside 2. Ext.P5 application is allowed. 3. The Court below is directed to effect delivery of possession of the property covered by Ext.P1 sale certificate to the petitioner in accordance with law. 4. The time period for making any statutory payments by the petitioner, shall stand enlarged by a period of three weeks from the date of receipt of a certified copy of this judgment. Sd/- ## **C.S.DIAS, JUDGE** rkc/06.07.22 OP(C) NO. 1094 OF 2013 9 ## **APPENDIX OF OP(C) 1094/2013** PETITIONER'S EXHIBITS EXHIBIT-P1: A TRUE COPY OF THE SALE CERTIFICATE 29.7.2008 ISSUED IN FAVOUR OF THE PETITIONER FROM THE MUNSIFF COURT, NORTH PARAVOOR. EXHIBIT-P2: A TRUE COPY OF THE ORDER DATED 2.4.2007 IN EA 460/2006 IN EP 100/2004 IN OS 50/2002 OF THE MUNSIFF COURT, NORTH PARAVOOR. EXHIBIT-P3: A TRUE COPY OF THE ORDER DATED 29.1.2008 IN CMA 44/2007 OF THE ADDITIONAL DISTRICT COURT, NORTH PARAVOOR. EXHIBIT-P4: A TRUE COPY OF THE ORDER DATED 7.4.2010 CRP 608/2008 OF THIS HON'BLE COURT 7.4.2011. EXHIBIT-P5: A TRUE COPY OF THE PETITION DATED 25.11.2010 (EP 237/2010 IN OS 50/2002) OF THE MUNSIFF COURT, NORTH PARAVOOR. EXHIBIT-P6: A TRUE COPY OF THE OBJECTION DATED 2.6.2011 FILED BY 1ST RESPONDENT HEREIN IN EP 237/2010 IN OS 50/2002 OF THE MUNSIFF COURT, NORTH PARAVOOR. EXHIBIT-P7: A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 16.7.2011 IN EP 237/2010 IN OS 50/2002 OF THE MUNSIFF COURT, NORTH PARAVOOR. EXHIBIT-P8: A TRUE COPY OF THE ORDER DATED 29.9.2012 IN EP 237/2010 IN OS 50/2002 OF THE MUNSIFF COURT, NORTH PARAVOOR.