VAMANAN.T. v Canara Bank and others

1 OP(C)No.1415 of 2013 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 OP(C) NO. 1415 OF 2013 AGAINST THE ORDER/JUDGMENT IN EA 210/2010 IN EP 50/2004 IN OS 88/1988 OF SUB COURT , KASARAGOD ``` ## **`PETITIONER/S:`** ``` VAMANAN.T.,AGED 49 YEARS,S/O. E.KRISHNAN NAIR, RESIDING AT EDAYILLAM HOUSE, EROLE, BARE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.A.BALAGOPALAN SMT.V.K.AMBIKA SRI.M.S.IMTHIYAZ AHAMMED SRI.M.N.MANMADAN SRI.A.RAJAGOPALAN ``` ## **`RESPONDENT/S:`** - `1 CANARA BANK,CHEROOTY ROAD BRANCH, CALICUT, REPRESENTED BY ITS MANAGER, CHEROOTY BRANCH.` - `2 N.LAKSHMINARAYANA MALLYA S/O. M.RAMDAS MALLYA, RESIDING AT BANTWAL, KARNATAKA.` - `3 K.R.MALLYA,S/O. LATE SRINIVAS MALLYA, FLAT NO.321, KERALA STATE HOUSING BOARD COLONY, CALICUT-6.` - `4 SMT.NARAYANI,AGED 62 YEARS D/O. LATE PAKKEERAN AND LATE VELLACHI, RESIDING AT VADAKKEY VALAPIL, MUKKUNNATH, BARE VILLAGE, HOSDURG TALUK, P.O.BARE, KASARAGOD DISTRICT.` - `5 SMT. MADHAVI,AGED 56 YEARS D/O. LATE PAKKEERAN AND LATE VELLACHI, RESIDING AT VADAKKEY VALAPIL, MUKKUNNATH, BARE VILLAGE, HOSDURG TALUK, P.O.BARE, KASARAGOD DISTRICT.` - `6 SMT. LAKSHMI,AGED 52 YEARS D/O. LATE PAKKEERAN AND LATE VEVADAKKEY VALAPIL, MUKKUNNATH, BARE VILLAGE, HOSDURG TALUK, P.O.BARE, KASARAGOD DISTRICT.` - `7 KUNHIRAMAN,AGED 44 YEARS S/O. LATE PAKKEERAN AND LATE VEVADAKKEY VALAPIL, MUKKUNNATH, BARE VILLAGE, HOSDURG TALUK, P.O.BARE, KASARAGOD DISTRICT. BY ADVS. SRI.D.KRISHNA PRASAD SMT.S.SANTHY SRI.P.P.JOYI SMT.MINI V.MENON SRI.P.VISHNU PRASAD` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C)No.1415 of 2013 **C.S DIAS,J. --------------------------OP(C)No.1415 of 2013 ----------------------------Dated this the 23[rd] day of November, 2022.** ## **JUDGMENT** Confronted with Ext P9 order passed in E.A No.210/2010 in E.P No.50/2004 in OS No.88/1988 of the Court of the Subordinate Judge, Kasargod, the auction purchaser has filed the original petition. The first respondent in the original petition is the decree-holder, the respondents 2 and 3 are the judgment debtors and respondents 4 to 7 are the third party claimants in the execution petition. 2. The facts leading to Ext P9 order, in a narrow compass, are; an extent of 21 cents of property in Uduma Village belonging to the respondents 2 and 3 was put up in auction in the process of the execution of the decree in OS No.88/1988 by the first respondent. The petitioner was a successful bidder in the auction held on 15/9/2008. The sale was confirmed in his favour on 3 OP(C)No.1415 of 2013 14.11.2008 for an amount of Rs.3,50,100/-. Ext P1 sale certificate was issued in his favour on 24.11.2008. The petitioner filed EA 225/2008 (Ext P2) for the delivery of the property. During the pendency of Ext P2, the respondents 4 to 7 – third party claim petitioners – filed OS No.1/2009 before the court below for a declaration that they have perfected title over the auction schedule property by adverse possession and limitation. Ext P4 order of temporary injunction was passed against their dispossession. Then, on 30.10.2009, the petitioner filed Ext P5 memo to withdraw Ext P2 application with liberty to file a fresh application. OS No.1/2009 filed by the respondents 4 to 7 was dismissed as withdrawn on 16.11.2010 by Ext P6 judgment. Thereafter, on 18.11.2010, the petitioner filed a fresh application as EA 210/2010 (Ext P7) for delivery of the property. The respondents 4 to 7 opposed the application on the ground that they have perfected title by adverse possession and limitation. The court below, by the impugned Ext P9 order, dismissed Ext P7 application. 4 OP(C)No.1415 of 2013 Ext P9 is erroneous and wrong. Hence the original petition. 3. Heard; Sri.Imthiyaz Ahammed, the learned counsel appearing for the petitioner and Smt.S.Santhy, the learned counsel appearing for the respondents 4 to 7. 4. The question is whether there is any illegality in Ext P9 order. 5. The court below, rejected Ext P7 application by the impugned order, for the reason that the petitioner’s application for delivery was time barred in the light of Article 134 of the Limitation Act, as it was filed beyond one year after the confirmation of the sale. 6. The petitioner’s case is that although he had initially filed Ext P2 application for the delivery of the property, which was well within the stipulated time period of one year, the same was dismissed as withdrawn, in view of the pendency of OS No.1/2009. After the dismissal of the suit on 16.11.2010, the petitioner again filed Ext P7 application. Therefore, the 5 OP(C)No.1415 of 2013 time period during the pendency of OS No.1/2009 has to be excluded. 7. It is to be remembered that OS No.1/2009 had nothing to do with the petitioner. It is only for reasons best known to the petitioner that he withdrew Ext P2 application. Undisputedly, Ext P7 application was filed one year after the confirmation of the sale, ie., on 18.11.2010. The time period to file the application had lapsed on 14.11.2009. 8. The law with respect to the right of the auction purchaser to apply for delivery of the property is no longer res integra in view of the Full Bench decision of this Court in **Danish Varghese vs. Jancy Danish** [2021 (1) KHC 1]. In paragraph 19 this Court held as follows: “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** 6 OP(C)No.1415 of 2013 **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”. 9. At the cost of repetition, it is reiterated that there was no interdiction in the suit filed by the respondents 4 to 7 for the petitioner to prosecute Ext P2 application. The respondents 4 to 7 attempted to establish their right, which was turned down. Surprisingly, the petitioner, on his own volition, withdrew the application without obtaining liberty or leave to file a fresh application. It is after the dismissal of the suit, he filed Ext P7 application. According to me, the time period between the withdrawal of Ext P2 7 OP(C)No.1415 of 2013 application and refiling of Ext P7 application cannot be excluded because the application was abandoned by the petitioner. Thus, I am constrained to hold that Ext P7 application is time barred as contemplated under Article 134 of the Limitation Act and as rightly observed by the court below in Ext P9 order. Nonetheless, as observed by the Full Bench in the aforecited decision, the petitioner would be at liberty to file a fresh suit and seek for recovery of possession based on Ext P1 sale certificate. I do not find any error or illegality in Ext P9 order warranting interference by this Court under Article 227 of the Constitution of India. In the result, without prejudice to the right of the petitioner to work out his remedies as contemplated in the law laid down in **Danish Varghese** (supra), the original petition is dismissed. SD/- Sks/23.11.2022 **C.S.DIAS, JUDGE** 8 OP(C)No.1415 of 2013 ## **`APPENDIX OF OP(C) 1415/2013`** ``` PETITIONER EXHIBITS ``` ``` P1 : COPY OF CERTIFICATE OF SALE OF LAND IN FAVOUR OF THE PETITIONER. P2 : COPY OF EA NO.225/2008 IN EP 50/2004 IN OS NO.88/1988. P3 : COPY OF PLINT IN OS NO.1/2009. P4 : COPY OF INJUNCTION ORDER IN IA NO.5/2009 IN OS NO.1/2009 DTD.5.1.2009. P5 : COPY OF MEMO FILED BY THE PETITIONER. P6 : COPY OF JUDGMENT IN OS NO.1/2009. P7 : COPY OF EA NO.210/2010 DELIVERY APPLICATION. P8 : COPY OF COUNTER TO EXT.P7. P9 : COPY OF ORDER DTD.24.1.2012 IN EA NO.210/2010. ```