IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1023 of 2007()
1. JOHN, S/O.JOSEPH, OTTAPLACKAL HOUSE,
... Petitioner
Vs
1. C.V.ELIAS, S/O.VARGHESE,
... Respondent
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.VARGHESE C.KURIAKOSE
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :02/03/2009
O R D E R
HARUN-UL-RASHID,J.
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C.R.P.NO.1023 OF 2007
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DATED THIS THE 2ND DAY OF MARCH, 2009
O R D E R
The revision petitioner is a court auction purchaser in
E.P.No.50/2001 in O.S.No.50/2000 on the file of the Sub Court,
Kattapana. The property in question was sold in court auction on
25/2/2003. The auction is conducted in respect of 1 acre and 63
cents of land for realisation of Rs.2,25,255/-. The respondent-
judgment debtor filed a petition for setting aside the sale, which
was dismissed and the sale was confirmed on 11/8/2003 subject to
the result of I.P.No.1/2003 pending before the Sub Court,
Kattapana in which there was a stay of execution proceedings.
2. I.P.No.1/2003 was filed by the judgment debtor for
declaration as insolvent. The execution proceedings and the court
auction delivery etc. are subject to the result of the insolvency
proceedings. That is the reason why the confirmation of sale was
made subject to the result of the I.P.No.1/2003.
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3. Originally I.P.No.1/2003 was dismissed for default on
28/1/2004. Sale certificate was issued on 10/12/2004. But the
I.P. was restored to file on 10/12/2004 and the same was again
dismissed on 14/12/2005. The petitioner filed an application on
13/2/2006 under Section 21 Rule 95 of the Code of Civil
Procedure for delivery of the property, which was allowed. The
respondent-Judgment Debtor filed C.R.P.No.254/2006
challenging the order of delivery. This Court disposed of the
C.R.P. directing the execution court to consider the application
afresh and pass appropriate orders in accordance with law.
Subsequently, the execution court again considered the matter.
The learned counsel for the judgment debtor contended that since
the application is filed beyond one year, the application for
delivery is barred by limitation under Article 134 of the
Limitation Act. The execution court held that the court auction
purchaser again seek extension of time for filing the application
for the reason that the confirmation is subject to the outcome of
I.P.No.1/2003. When the Limitation Act prescribes the period
from the date when the sale certificate became absolute, whatever
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be the reasons, the application shall be filed within one year from
the date of confirmation of sale.
4. I cannot agree with the reasons stated by the learned
counsel for the judgment debtor-respondent in support of the
order passed by the court below. If it is a case of confirmation
absolute, there is no difficulty for attracting the provisions of the
Limitation Act and the auction purchaser had to file an
application within one year from the date of confirmation of the
order. In this case the auction purchaser is incapable of filing
any application. In view of the pendency of I.P.No.1/2003, the
auction purchaser was waiting for the outcome of the I.P. If the
I.P. is kept pending for years, there is no meaning in filing an
application for delivery of the property because the court below
cannot order delivery in this case. So the confirmation ordered
on 11/8/2003 subject to condition that the sale became absolute
only on a future date, i.e. on the date of final disposal of the I.P.,
namely 14/12/2005. Thereafter, the IP was not neither restored
nor prosecuted. So the time supports from 14/12/2005. The
application is filed within one year under Section 134 of the
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Limitation Act. Therefore, the application is within time. The
finding of the court below that the pendency of I.P.No.1/2003 is
no excuse for extending the period of limitation is totally
incorrect. It is not a question of extension of limitation. In this
case what is to be examined is the right time by which the court
auction purchaser can apply for delivery. The date supports only
from the date of result of the I.P. and the court auction purchaser
has got one year from the date of disposal of the I.P.
6. In the result, the impugned order is set aside. The
execution court is directed to consider the matter and order
delivery as expeditiously as possible. Delivery shall be made
immediately after 30 days’ time granted at the request of the
judgment debtor-respondent.
C.R.P. is allowed.
HARUN-UL-RASHID,
Judge.
kcv.