IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 172 of 2005()
1. VELIKKAL ANJANEYAN, AGED 51 YEARS,
... Petitioner
2. PAYYANAKKAL SURENDRAN, AGED 42 YEARS,
Vs
1. KANJIROLI ABDUL RAZAK, AGED 48 YEARS,
... Respondent
2. VELIKKAL KUNHISANKARAN, AGED 59 YEARS,
3. VELIKKAL ANANDAN, AGED 57 YEARS,
4. VELIKKAL PARTHAN, S/O. MADHAVAN,
5. VELIKKAL RAGHAVAN, S/O. MADHAVAN,
6. VELIKKAL SATHEESAN, S/O. MADHAVAN,
7. M/S. C.M. MATHEW AND BROTHERS,
8. M. AHAMMED, AGED 41 YEARS,
9. ABDUL HABEEB, S/O. MAMMU MASTER,
10. P.M. HAMEED, S/O. KANGATTU ABDULLA,
11. V. SULAIMAN, AGED 40 YEARS,
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :07/11/2007
O R D E R
P.R. RAMAN & V. K. MOHANAN, JJ.
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F.A.O. NO. 172 OF 2005
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DATED THIS, THE 7TH DAY OF NOVEMBER, 2007.
J U D G M E N T
Raman, J.
This is an appeal against the order of remand in A.S.4/2003 on the file
of the District District Court, Kozhikode. The appellants are defendants 1
and 7, who are respondents 1 and 7 in the appeal. The suit was one for
partition claimed to be on the basis of title obtained from court sale. A
short, difficult, but interesting question arises in this appeal is as to whether
an auction purchaser, who purchased the undivided share in an immovable
property sold in execution of a money decree whose execution petition for
taking delivery dismissed as time barred, is entitled to maintain a separate
suit for partition and for separate possession of his share and whether such a
suit is barred by Section 47 of the Code of Civil Procedure?
2. The suit property belonged to defendants 1 to 6 and their father
one late Madhavan. The said Madhavan was adjudged insolvent on
31.7.1975. His 1/7th share was sold in court auction and knocked down in
favour of the 7th defendant. The other six shares remained with Defendants
1 to 6. The 8th defendant filed O.S. 254/1984 before the Sub Court,
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Kozhikode, for recovery of money from the first defendant. That suit was
decreed and execution petition was filed and 1/7th share of the first
defendant was brought to sale and in court auction, it was knocked down in
favour of the 8th defendant. The sale was eventually confirmed in favour of
the 8th defendant. The sale sannad Ext.A2 was issued in favour of the 8th
defendant on 12.9.1992 and thereafter, the 8th defendant sold his right
under the sannad to the plaintiff by Ext.A3 dated 15.2.1993. Thereafter,
E.P. 129/1993 was filed (Ext.B1) by the present plaintiff and the 8th
defendant jointly seeking delivery of the property through court under Order
21 Rule 95 of the Code of Civil Procedure on 20.3.1993. By Ext.A4 order,
the said Execution Petition was found to be time barred and closed the
matter by endorsement dated 30.10.1996. It is thereafter, that the present
suit O.S. 2/1997 was filed before the Sub Court, Kozhikode on 4.1.1997
seeking partition and separate possession as stated earlier. By judgment and
decree dated 16.11.2002, the trial court dismissed the same. On appeal, the
appellate court, by its order impugned in this appeal, allowed the same by
way of remand to the trial court. Aggrieved thereby the present appeal is
preferred by the contesting defendants.
3. The suit for partition was resisted by the contesting defendants
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mainly on the ground of maintainability. The trial court found that the
plaintiff has no title over the plaint schedule property and the suit is barred
under Section 47 of the Code of Civil Procedure. The appellate court
reversed the said finding. The contention advanced by the defendants was
that in the absence of any symbolic possession taken pursuant to the sale
sannad issued in the earlier proceedings, a subsequent suit for partition and
separate possession is barred under Section 47 of the Code of Civil
procedure. This plea was accepted by the trial court. But the appellate
court held that even though the auction purchaser and the transferee could
not succeed in getting symbolic possession through Ext.A4 proceedings,
that will not affect the title to the plaint schedule property. According to
the appellate court, in order to maintain a suit for partition, it is not a
condition precedent that the plaintiff should be in possession of the property
with other co-parceners and that is why separate provision is made in
Section 37 of the Court Fees Act in respect of payment of court fee when
the plaintiff is out of possession and when he is in joint possession with the
other co-owners.
4. Learned counsel Sri. P.B. Krishnan appearing on behalf of the
appellant would submit that the finding of the appellate court that the suit is
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maintainable and the further finding that the plaintiff has got valid title over
the 1/7th share on the plaint schedule property and he is entitled to a
partition by filing the suit is contrary to law and unsustainable. The learned
counsel appearing for the respondent, on the other hand, would submit that
what was sold and purchased being an undivided share of an immovable
property, the auction purchaser and the subsequent transferee get only the
right, title and interest of the undivided share held by the judgment debtor
and as such, there arises no question of taking actual delivery of the
property in execution. Since it is incapable of taking actual delivery and the
property being not identifiable, the only remedy available is to institute a
suit for partition and hence the present suit for such relief is in no way
barred by Section 47 of the Code of Civil Procedure even though the
Execution Petition was dismissed as time barred.
5. The point that arises for consideration is when the plaintiff failed
to take symbolic delivery of the property under Order21 Rule 96 CPC and
since the very execution petition was dismissed as time barred, whether the
subsequent suit for partition and separate possession is maintainable under
law?
6. Before we discuss the authorities on the point, we shall refer to the
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relevant provisions contained in Section 47 CPC and also Order 21 Rules 95
and 96 CPC which may be necessary for a better appreciation of the rival
submissions made by the parties.
Section 47:
Questions to be determined by the court executing decree —
(1) All questions arising between the parties
to the suit in which the decree was passed, or their
representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and
not by a separate suit.(2) (Omitted)
(3). Where a question arises as to whether
any person is or is not the representative of a party,
such question shall, for the purposes of this
section, be determined by the Court.[Explanation 1.-For the purposes of this
section, a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been
dismissed are parties to the suit.Explanation II.- (a) For the purpose of this
section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party
to the suit in which the decree is passed; and(b) all questions relating to the delivery of
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possession of such property to such purchaser or
his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction
of the decree within the meaning of this section.]”Order 21 Rules 95 and 96 read as follows:
95. “Delivery of property in occupancy of
judgment-debtor:-Where the immovable property sold is in the
occupancy of the judgment-debtor or of some
person on his behalf or of some person claiming
under a title created by the judgment-debtor
subsequently to the attachment of such property
and a certificate in respect thereof has been granted
under Rule 94, the Court shall, on the application
of the purchaser, order delivery to be made by
putting such purchaser or any person whom he may
appoint to receive delivery on his behalf in
possession of the property, and, if need be, by
removing any person who refuses to vacate the
same.96. Delivery of property in occupancy of
tenant.–Where the property sold is in the occupancy
of a tenant or other person entitled to occupy the
same and a certificate in respect thereof has been
granted under Rule 94, the Court shall, on the
application of the purchaser, order delivery to be
made by affixing a copy of the certificate of sale in
some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or
other customary mode, at some convenient place,
that the interest of the judgment debtor has been
transferred to the purchaser.”FAO 172/2005 :7:
7. In Laxmi Narayana Rao v. New Premier Chemical Industries
((2005) (9) SCC 354), the apex court, after referring to Section 47 as also
Order 21 Rule 95 CPC, held that a bare perusal of the aforementioned
provisions would leave no manner of doubt and in particular having regard
to the amendments carried in CPC by reason of the CPC Amendment Act,
1976 that the steps for obtaining delivery of property in occupancy of the
judgment-debtor is required to be taken by the auction – purchaser in terms
of Order 21 Rule 95 CPC and, thus, a separate suit to enforce such a right
would, therefore, be not maintainable. It was also held that once the
decree stands satisfied, the execution proceedings come to a end and in that
view of the matter, a proceeding in the nature of one contemplated under
Order 21 Rule 95 CPC is required to be initiated for the purpose of
obtaining delivery of possession of the property purchased in court auction
by the decree-holder and such an application must be filed within the
prescribed period of limitation as provided for under Article 134 of the
Limitation Act, 1963. The schedule appended to the Limitation Act, 1963
having provided for a specific provision prescribing limitation for filing an
appropriate application for recovery of possession of any property in
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possession of the judgment debtor, it is idle to contend that Article 136 of
the Limitation Act would apply even in relation thereto. Even though
a prayer was made to treat the suit as an application under Order 21 Rule 95
CPC to exercise the court’s power ex debito justitiae, the said prayer was
denied holding that in the case of this nature, Article 134 of the Limitation
Act will apply and the suit was not filed within the prescribed period of
limitation. It was noticed that the sale was confirmed in 1973 and the
execution appeal filed by the judgment debtor was dismissed in 1974 in
terms of Article 134 of the Limitation Act and the suit was not filed within a
period of one year, the period prescribed under Article 134 of the Limitation
Act for claiming the relief under order 21 Rule 95 CPC. Reference was
also made to the decision in Nandarani’s case (Nandarani Mazumdar v.
Indian Airlines (( 1983) 4 SCC 461) wherein it was held that in
appropriate cases, the court can exercise its inherent jurisdiction to treat the
application under Order 21 Rule 95 CPC. It was held that a bare perusal of
the said judgment would clearly show that although it was held that a
separate suit would not be maintainable for the purpose of recovery of
possession of a property which was in possession of the judgment debtor,
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but the relief could be granted to a decree holder ex debito justitiae by
directing that the plaint be treated as an application under Order 21 Rule 95
CPC. and such a course could have been taken recourse to only if there is a
finding by the trial court that the suit was within the prescribed period of
limitation in terms of Article 134 for treating such a suit as an application
under Order 21 Rule 95.
8. Of course, in the present case, exercising the power under ex
debito justitiae does not arise since the suit is filed beyond a period of one
year as prescribed under Article 134 of the Act and hence the question of
treating the suit as an application filed under Order 21 Rule 95 or 96 as such
does not arise. The above decision is an authority for the proposition that in
case delivery is not taken in terms of Order 21 Rule 95, a separate suit for
recovery of possession will be barred under Section 47 of the Code of Civil
Procedure. But the learned counsel for the respondent sought to distinguish
the decision by contending that in the above decision what was sold in
execution was a specific item of immovable property (in execution of a
money decree) which was capable of taking delivery and no separate suit for
recovery alone is maintainable as per Section 47 of the Code of Civil
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Procedure, whereas in the present case, what is sold is an undivided share,
which is incapable of taking delivery under Order 21 Rule 95 CPC. without
partition and partition is not a relief that could be comprehended under
Section 47 CPC and that provision is foreign to the grant of such reliefs.
According to the learned counsel for the appellant, there is no such
distinction possible as far as the principle to be applied is concerned.
According to him, even if actual delivery could not be taken, a symbolic
delivery in terms of Order 21 Rule 96 is certainly possible and therefore,
there cannot be any difference unless it is shown that at least symbolic
delivery was taken in execution after the sale sannad is obtained.
Otherwise, according to him, the bar under Section 47 will equally apply
even in cases where what is sold is an undivided share. According to him,
only when such delivery is taken, it can be said that the execution is
complete. We shall examine this contention with reference to some of the
authorities on the point.
9. Manikayala Rao v. Narsimhaswami ( AIR 1966 SC 470) was a
case where in a money suit , a decree was eventually passed against A and
his four sons who are members of a Mitakshara Hindu Joint family. In
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execution of that decree, shares of the four sons in the joint family
properties, described altogether as 4/5th share, were auctioned and
purchased by B whose successor in interest were the appellants. The
father’s share, however, was not sold. The auction purchaser thereafter sold
the properties purchased by him in the auction to ‘C’. Subsequently, an
order was made under Order 21 Rule35(2) and 96 CPC for delivery of joint
possession of properties purchased to ‘C’ along with the members of the
family in actual possession. This order was duly carried out and possession
was delivered to ‘C’ by publishing that fact by beat of drums. Subsequently,
‘C’ transferred the properties again to the auction purchaser ‘B’. ‘B’ filed a
suit, out of which the appeal arose, against the members of the family asking
for partition of the joint family properties and by removing the defendants
from possession. The suit was decreed. But it was held that the plaintiff
was not entitled to 4/5th share but only to a 2/3rd share (which fact is not
relevant for our purpose). Some of the defendants appealed to the High
Court which was allowed holding that the suit was barred by limitation
under Article 144 of Schedule I to the Limitation Act. Various questions
raised for consideration of which only two of them survived by the decision
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of the apex court – as to whether the suit was barred by limitation and
whether B was entitled to a 4/5th share. While considering the question of
limitation, it was held that Article 144 deals with suit for possession of
immovable property or interest therein not otherwise specially provided for
and prescribes a period of twelve years commencing from the date when the
possession of the defendant becomes adverse to the plaintiff and the said
Article obviously contemplates a suit for possession of property where the
defendant might be in adverse possession of it as against the plaintiff. It is
settled that the purchaser of a coparcener’s undivided interest in joint family
property is not entitled to possession of what he has purchased; but he is
entitled to sue for partition of the property and ask for allotment to him of
that which on partition might be found to fall to the share of the coparcener
whose share he had purchased. Thus, ‘B’ was not entitled to possession till
a partition was made. That being so, it was argued that the defendant in the
suit could never have been in adverse possession. It was held that under
Section 36 of the Code the provisions relating to the execution of decrees
are applicable to execution of orders and in any case, the order is clearly
within the terms of Order 21 Rule 96. The delivery of symbolical
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possession made in this case was quite in terms of the Code and so
amounted to an interruption of the respondent’s adverse possession and the
period of limitation for the purpose of the application of Article 144 would
start from the date of such delivery. As the suit was brought within twelve
years from the date of that delivery of possession, Article 144 even if it
applies, does not bar it.
10. Both sides placed reliance on the above said decision. On a
careful consideration of the above said decision, we find that it was a case
where admittedly a symbolic delivery was taken as contemplated under
Order 21 Rule 96. It was thereafter that the suit was filed for partition. The
apex court observed that ‘the right of the auction purchaser is to sue for
partition of the property and ask for allotment to him of that which on
partition might be found to fall to the share of the coparcener whose share
he had purchased’ and that ”B’ was not entitled to possession till a partition
had been made’.
11. In Pattam Khader Khan v. Pattam Sardar Khan ((1996) 5
SCC 48) it was held as follows:“A court sale is a compulsory sale conducted by
or under orders of the court. The title of the property
sold does not vest in the purchaser immediately on theFAO 172/2005 :14:
sale thereof unlike in the case of a private sale. The
law requires that it does not become absolute until
some time after the sale; a period of at least 30 days
must expire from the date of sale before the sale can
become absolute. In that, the sale is susceptible of
being set aside at the instance of the judgment-debtor
on the ground of irregularity in publication or conduct
of the sale or on defalcation as regards deposit of
money etc. as envisaged in Rules 89 and 90 of Order21. Where no such application is made, as is the case
here, the court was required, as indeed it did, to make
an order confirming the sale and it is upon such
confirmation that the sale becomes and became
absolute in terms of Order 21 Rule 92. On the sale
becoming absolute, it is obligatory on the court
though, to issue the certificate. That may, for any
reason, get delayed. Whether there be failure to issue
the certificate or delay of action on behalf of the court
or the inaction of the purchaser in completing the
legal requirements and formalities, are factors which
have no bearing on the limitation prescribed for the
application under Article 134. The purchaser cannot
seek to extend the limitation on the ground that the
certificate has not been issued.xxxxxxxxxx xxxx xxxx xxxxx
The starting point of limitation for the application
being the date when the sale becomes absolute ie. the
date on which title passed, the evidence of title, in the
form of sale certificate, due from the court, could
always be supplied later to the court to satisfy the
requirements of Order 21 Rule 95.’ High court has
therefore erred in taking the view view that though
the sale becomes absolute on confirmation under
order 21 Rule 92 CPC effectively passing title, the
same can only be complete when evidenced by a sale
certificate issued under Order 21 Rule 94, and thatFAO 172/2005 :15:
unless the sale certificate is issued, limitation cannot
start for the purpose of an application under order 21
Rule 95 CPC, vis-a-vis, Article 134 of the Limitation
Act, 1963.’12. The question as to when does the period of limitation start for an
application to be made under Order 21 Rule 95 CPC, and whether time to
be reckoned from the confirmation of sale or only from the issuance of
certificate, was considered in the above decision. There is however an
observation in para 13 that “the period of one-year limitation, now
prescribed under Article 134 of the Limitation Act, 1973, in substitution of
a three-year period prescribed under Article 180 of the Indian Limitation
Act of 1908, is reflective of the legislative policy of finalising proceedings
in execution as quickly as possible by providing a quick forum to the
auction purchaser to ask 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 and on his failure to avail
of such quick remedy the law relegates him to the remedy of a suit for
possession in a regular way” on which strong reliance is placed by the
respondent to argue that a separate suit, even though a relief under Order 21
Rule 95 may be barred under Article 134 of the Limitation Act, in our
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opinion, does not support his contention in view of the later decision
reported in Lakshmi Narayana Rao’s case (2005 (9) SCC 354). Further,
the question as to whether a separate suit will be barred or not as such was
not considered in the above decision. What was considered in the said
decision was only regarding as to what is the starting point of limitation for
the purpose of filing an application under Article 134 of the Limitation Act
and it was in that context it was held that the purchaser cannot seek to
extent the limitation on the ground that certificate has not been issued.
The starting point of the limitation is the date on which title was passed and
such title and evidence of such title in the form of sale certificate could be
supplied later to the court to satisfy the requirement of order 21 Rule 95
CPC.
13. In Jagdish Dutt v. Dharam Pal (AIR 1999 SC 1694) the apex
court heldas follows:
“When a decree is passed in favour of the joint
family, the same has to be treated as a decree in favour
of all the members of the joint family in which event it
becomes a joint decree. Where a joint decree for actual
possession of immovable property is passed and one of
the coparceners assigns or transfers his interest in the
subject matter of the decree in favour of the judgment
debtor, the decree gets extinguished to the extent of theFAO 172/2005 :17:
interest so assigned and execution could lie only to the
extent of remaining part of the decree. In case where
the interest of the coparceners is undefined,
indeterminate and cannot be specifically stated to be in
respect of any one portion of the property, a decree
cannot be given effect to before ascertaining the rights
of the parties by an appropriate decree in a partition
suit. (Emphasis supplied) It is no doubt true that the
purchaser of the undivided interest of a coparcener in an
immovable property cannot claim to be in joint
possession of that property with all the other
coparceners. However, in case where he is already in
possession of the property, unless the rights are
appropriately ascertained, he cannot be deprived of the
possession thereof for a joint decree holder can seek for
execution of a decree in the whole and not in part of the
property. A joint decree can be executed as a whole
since it is not divisible and it can be executed in part
only where the share of the decree holders are defined
or those shares can be predicted or the shares not in
dispute. Otherwise the executing court cannot find out
the shares of the decree – holders and dispute between
joint decree-holders is foreign to the provisions of S.47
CPC. “
14. We have gone through the facts in the said decision. That was a
suit for ejectment instituted by the appellants on the ground of arrears of
rent and sub-letting. The suit was decreed. Final execution proceedings
were taken and there were some objection, thereto. One of the contention
was that the second respondent therein was not a tenant but a trespasser.
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Against that order, a revision was filed which was also dismissed granting
some time to vacate the premises subject to certain conditions. Second
respondent claimed that he purchased the undivided interest of the co-
parcener in the Hindu Undivided Family of the decree holder and therefore,
actual possession cannot be given but only symbolic possession can be
given to the appellant decree holder. This contention was accepted by the
execution court and that was challenged before the High court. The High
Court set aside the order of the execution court and remanded the matter to
investigate the quantum of share purchased by the second respondent. In
that context, it was held that if a good or larger share as opposed to an
insignificant share had been purchased by the second respondent khas
possession cannot be given to the appellant and if only an insignificant
portion had been purchased by him, khas possession shall be given to the
appellant. It is against this order that the special leave petition was
preferred. In that context it was held that the execution court cannot find
out the shares of the decree holders and dispute between joint decree-
holders is foreign to the provisions of Section 47 of the Code of Civil
Procedure. Order 21 Rule 15 enables a joint decree holder to execute a
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decree in its entirety; but if whole of the decree cannot be executed, this
provision cannot be of any avail and in that event also the decree holder
will have to work out his rights in an appropriate suit for partition and
obtain necessary relief thereto.
15. The apex court, in the above decision, thus, was considering the
scope of the power of the execution court to give possession in the case of
an undivided share in a coparcenary property and held that the appropriate
remedy is to institute a suit for partition.
16. In K.N. Krishnappa v. T.R. Gopalkrishna Setty (AIR 1997
KARNATAKA 152) it was held that a separate suit for declaration of title
and recovery of possession by a decree holder who purchased the suit
property in execution of a decree in a mortgage suit where the sale was
confirmed and certificate issued, is not maintainable. In that case, in spite
of the confirmation of sale, the judgment debtors remained in possession
and enjoyment of the property. Claiming that he became the owner of the
property by virtue of the court sale, the decree holder filed the suit for
declaration. It was held that the question regarding delivery of possession
to the auction purchaser or his representative is a matter relating to
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execution, discharge and satisfaction of the decree within the meaning of
Section 47 CPC and by virtue of sub-section 1 of Section 47 determination
of such questions by a separate suit is barred.
17. State of Travancore-Cochin v. Lakshmi Ammal Meenakshi
Ammal (1957 KLT 1094) was a case where delivery was taken in
execution of the decree symbolically. Whether a suit for recovery based on
title is maintainable at the instance of the decree holder- auction purchaser,
even against the judgment debtor and his representatives arose for
consideration therein. It was observed that once delivery has been taken in
execution of the decree, even if it be only symbolical as referred to in
Order 21 Rule 35(2) and Rule 36 (of the old Code) a suit for recovery
based on title will be maintainable at the instance of the decree holder
auction purchaser even against the judgment debtor and his representatives
because symbolic possession has to be treated as actual possession where
the suit is against the judgment debtor or his representatives. But in that
case, it was found that actual delivery in execution was claimed to have
been obtained by the plaintiff.
18. In Lakshmanan Pillai v. Subhashini (1971 KLT 850) it was
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held that until recovery of possession is also obtained in pursuance of the
sale certificate, the decree is not satisfied, so that the suit to recover
possession in pursuance of the sale certificate will be hit by Section 47
since the execution and discharge of the decree has not yet come to a close.
The Bench held that ‘Section 47 is in the statute book for a purpose, viz, to
prevent multiplicity of suits, and the way the section has been interpreted
by the various High Courts which take the same view, is only in
conformity with that intention. Though a contrary view was expressed by
other High courts, this Court did not agree with the same in this regard.
Though in that case also, there was a prayer made to convert the suit into a
proceeding under Section 47 this Court held that under Section 47 a suit
can be converted into a proceeding in execution subject only to any
objection as regards limitation or jurisdiction. There, in the plaint itself,
the averment was that the execution petition filed by the appellant before
the executing court was dismissed as time barred and there was no appeal
against the said order and it has become final. Therefore, the prayer for
conversion cannot be allowed. This decision is an authority for two
propositions ie. the provisions contained in Section 47 CPC will be
FAO 172/2005 :22:
attracted in a subsequent suit instituted and unless recovery of possession is
obtained in execution of the decree earlier passed pursuant to the sale
certificate the execution and discharge of the decree will not be complete
unless delivery is taken. It is also an authority for the proposition that
conversion is possible only if the suit itself is filed within the period of
limitation as prescribed for and application for delivery is not barred.
19. Parbati Devi v. Purna Patra & Ors. (1997(3) Supreme 132)
was a case where an auction purchaser who had possession of 1/4th specific
share. Subsequently, he sold the same by registered sale deed who again
sold it to the appellant. The appellant filed the suit for partition. The
respondent purchased the other properties from the judgment debtor in the
suit. They disclaimed the purchase made by the predecessor in interest of
the appellant and the sale in his favour. The trial court decreed the suit and
the appellate court confirmed the same for partition of 1/4th share and
delivery of possession by metes and bounds. But the High court reversed
the decree holding that there is no proof of possession of property
delivered under the court sale. The view of the High court was found to be
in error in holding that there was no proof of possession. On a summoning
FAO 172/2005 :23:
of the court register which contained an entry regarding delivery of
possession and on a reading of the register of delivery of possession read
with the sale certificate, it was obvious that what was delivered to the
predecessor of the appellant was the property mentioned in the sale
certificate and thus he became the co-owner.
20. In Harnandrai Badridas V. Debidutt Bhagwati Prasad
((1973) 2 SCC 467) it was held that after the amendment of Section 47,
the purchaser at a sale in execution of a decree, whether he is the decree-
holder or not, is unquestionably a party to the suit for the purpose of
Section 47 and all questions arising between the auction purchaser and the
judgment debtor must be determined by the executing court and not by a
separate suit.
21. In Velayudhan Pillai v. Ouseph (AIR 1953 TRA-CO. 574) the
suit was for recovery of possession with arrears of rent. The property in
question was put in possession of the first plaintiff for a life estate with
liberty to encumber the same, which privilege was availed of by him. The
mortgagee filed a suit which ended in a decree for sale. In execution
thereof, the property was purchased by the decree holder. He did not,
FAO 172/2005 :24:
however, apply for or obtain delivery of possession which could at that time
have been only symbolical because the property was outstanding with the
defendant as lessee under the first plaintiff who was the judgment debtor.
While dealing with the matter, the Court observed thus:
“The courts below, it would appear, were of the
opinion that notwithstanding the sale the defendant is
liable to pay rent to the 1st plaintiff and to the superior
lessee, the 2nd plaintiff because his possession has not
been disturbed by the purchaser at the auction sale as
he did not apply for and obtain delivery. The title to
property sold in execution of a decree in court auction
sale passes to the purchaser on confirmation and the
judgment debtor thereupon ceases to have any title or
interest therein. No doubt, the Code of Civil Procedure
confers a right to the purchaser to apply for and obtain
delivery of the property in enforcement of the sale
certificate by an application made in that behalf to the
court. Such an application or delivery pursuant thereto
is not necessary to vest title in the purchaser. It is
open to the purchaser to straight away file a suit against
the party in possession if he be not the judgment-debtor,
and obtain whatever relief he is entitled to as purchaser.
The circumstances, therefore, that the purchaser had not
taken delivery of possession is not one that militates
against the completeness of the title obtained by him at
the auction sale which was confirmed.”
22. Based on the discussions as above, we may now formulate our
conclusions as follows:
FAO 172/2005 :25:
(i) If a specific immovable property is sold in execution of a
decree, it is imperative to take delivery of the same to make the execution
complete within the time as allowed by Article 134 of the Limitation Act
failing which a separate suit for recovery of possession is barred under
Section 47 of the Code of Civil Procedure. (see 2005 (9) SCC 354).
(ii) In case no such application is filed within the prescribed time,
instead a suit is filed within the said prescribed time, then the court in
appropriate cases can convert the suit into an application under Order 21
Rule 95 CPC ex debito justitiae and grant relief.
(iii) In a given case if actual physical possession cannot be taken,
symbolic possession taken under order 21 rule 96 will have the same effect
as though a khas possession is taken, as against the judgment debtor.
(iv) Effective title to the goods passes on the sale becoming absolute
on confirmation. ( see 1996 (5) SCC 48)
(v) In case where the interest of the coparceners is undefined,
indeterminate and cannot be specifically stated to be in respect of any one
portion of the property, a decree cannot be given effect to before
ascertaining the rights of the parties by an appropriate decree in a partition
suit. (see 1999 SC 1694).
FAO 172/2005 :26:
(vi) If the property sold in execution is the undivided share of the
judgment debtor, the decree holder or any one claiming under him, may
take symbolic delivery of the same under Order 21 Rule 96 of the Code and
will have the same effect of actual possession as against judgment debtor
and will be deemed in joint possession thereafter with the other sharers. But
in case no such delivery is taken, separate suit for partition as such will not
be barred under Section 47 of the Code. But if possession becomes
relevant in any given case and in the absence of such symbolic delivery, the
judgment debtor will be deemed to continue in possession and rights
determined accordingly.
(vii) Section 47 of the Code provides for relief and bars fresh suit to
obtain such relief. In so far as partition is not a relief to be granted
thereunder, there cannot be a bar to institute a fresh suit for such relief of
partition.
23. In the result, we are of the opinion that the undivided share
in an immovable property when sold in court auction, the auction purchaser
or anybody claiming under him though entitled to apply for symbolic
delivery under Order 21 Rule 96 CPC, since actual delivery of possession
may not be possible, but failure to take such symbolic delivery will not be a
FAO 172/2005 :27:
bar under Section 47 of the Code to institute a suit for partition. The proper
remedy of a purchaser of an undivided share is only to institute a suit for
partition and separate possession. We therefore confirm the order of the
court below and dismiss this appeal.
P.R. RAMAN,
(JUDGE)
V. K. MOHANAN,
(JUDGE)
knc/-