Vaenda v. D.G.Narasimhan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:24.04.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.569 of 2008and M.P.No.1 of 2008 1. Vaenda2. L.Sreenivasan3. L.Kumar4. Latha @ Pushpalatha5. Kothandan6. Ammu @ Dhanalakshmi.. Appellants /Appellantsvs.1. D.G.Narasimhan2. Vijayarangan @ Vijayan3. Murugan .. Respondents / RespondentsThis second appeal is filed against the judgment and decree dated18.09.2007 made in A.S.No.62 of 2006 on the file of the Sub Court,Ranipet, confirming the judgment and decree dated 30.12.2005 made inO.S.No.144 of 2004 on the file of the District Munsif Court,Sholinghur.For Appellants : Mr.M.SriramFor Respondent -1 : Mr.T.R.RajaramanORDERThis second appeal is focussed by the original defendants 5 to10, animadverting upon the judgement and decree dated 18.09.2007passed in A.S.No.62 of 2006 by the Sub Court, Ranipet, confirming thejudgement and decree of the trial Court, namely, District MunsifCourt, Sholinghur, in O.S.No.144 of 2004. For convenience sake, theparties are referred to hereunder according to their litigativestatus before the trial Court.2. A summation and summarisation of relevant facts which areabsolutely necessary and germane for the disposal of this SecondAppeal would run thus:The plaintiff/respondent filed the suit O.S.No.144 of 2004 asagainst the defendants for recovery of possession. The defendantsentered appearance and D6, D7 and D9 filed the written statementresisting the suit. https://hcservices.ecourts.gov.in/hcservices/

3. The trial Court framed the relevant issues. During trial, theplaintiff examined himself as P.W.1 and Ex.A1 was marked. On theside of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B4were marked. 4. Ultimately, the trial Court decreed the suit, as against whichthe appeal was filed, for nothing but to be dismissed by the FirstAppellate Court, confirming the judgment and decree of the trialCourt. Being disconcerted and aggrieved by the judgment and decreesof both the Courts below, this Second Appeal is sought to be filed onvarious grounds and also by suggesting the following allegedsubstantial questions of law:"1. Whether the Lower Appellate Court is justified inconfirming the judgment and decree of the trial Court?2. Whether the courts below are justified in notconsidering the well settled legal propositions of law?3. Whether the Courts below are justified in decreeingthe suit in the absence of availing the specific provisionsby the plaintiff as contemplated under Section 135 ofLimitation Act, 193 and Order 21 Rule 95 r/w Section 47 ofCPC?4. Whether the Courts below are justified in grantingthe relief based on Article 65(c) of Limitation Act, 1963when there is no specific pleading as to the possession ofthird party on the date of proclamation of sale by theplaintiff?5. Whether the Courts below are justified in notframing necessary issues regarding the character ofpossession and the applicability of the Article 65 of theLimitation Act and the finding given without givingopportunity to the appellant?6. Whether the Courts below are justified in givingfinding contrary to the admission made in the plaintregarding possession by the appellant as LegalRepresentatives of the judgment debtors?7. Any other substantial question of law that mayarise for consideration in the above Second Appeal?"(extracted as such)5. Heard both sides.6. A plain poring over and perusal of the typed set of papersincluding the copies of the judgments of both the Courts below and https://hcservices.ecourts.gov.in/hcservices/ also consideration of the arguments on either side would demonstrateand display that the plaintiff filed the suit for recovery ofpossession on the strength of the suit property having been purchasedby him in the Court auction sale dated 27.11.1991 which was confirmedon 03.06.1996; E.P. was not filed within a period of one year afterdelivery of possession; consequently, the plaintiff resorted tofiling the present suit for obtaining delivery of possession; thetrial Court decreed the suit based on the confirmation of the Courtauction sale in favour of the plaintiff and also pointed out that 12years' limitation was not applicable, as against which the FirstAppeal was filed and ultimately, the First Appellate Court dismissedthe suit.7. Disputing and remonstrating the findings of both the Courtsbelow, this Second Appeal has been filed setting out various groundsincluding the main ground that the suit itself was not maintainablein view of the embargo as found embodied under Section 134 of theLimitation Act as well as Section 47 of C.P.C.8. The learned counsel for the appellants in the Second Appealwould advance his argument to the effect that no separate suit ismaintainable in view of the fact that there is a special provision inthe Limitation Act for obtaining delivery, i.e. Article 134 within ayear; over and above that Section 47(c) of CPC would contemplate thatall disputes relating to such matters should be dealt with by theconcerned Court and not by a separate suit.9. Presumably, the learned counsel for the appellants hereinbased on the following maxims1. Expressum facit cessare tacitum : Express mention precludes implication.2. Expressio unius est exclusio alterius : Express mention ofone implies exclusion of others.3. Generalia specialibus non derogant : General things donot derogate from specific things.developed his argument.These are all sister provisions which would highlight and spotlightthe fact that when there is a special provision for obtaining certainremedies, the party is not allowed to make use of general remedy. Infact, the gist and kernel, the pith and marrow of the argument of thelearned counsel for plaintiff is only based on those principles.Further, in support of his contention, he would also cite thedecision of the Hon'ble Apex Court reported in AIR 1987 SC 1443[Ganpat Singh (dead) by L.Rs. v. Kailash Shankar and others]. Anexcerpt from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "9. Section 47 itself has nothing to do with the question oflimitation. Article 136 prescribes a period of limitation of12 years for the execution of a decree from the date onwhich the decree or order becomes enforceable or where thedecree or any subsequent order directs any payment of moneyor the delivery of any property to be made at a certain dateor at recurring periods when default in making any paymentor delivery in respect of which execution is sought, takesplace. After a decree is put into execution within theperiod of limitation under Article 136, questions relatingto execution, discharge or satisfaction of the decree mayarise and such questions including the question as to thedelivery of possession shall be determined by the executingcourt. When a property is sold in execution of a decree, anapplication for setting aside the sale may be made underRule 89, 90 or 91 of Order 21 of the Code of Civil Procedureby the persons and on grounds as mentioned therein. Such anapplication has also to be made within the prescribed periodof limitation of sixty days from the date of sale underArticle 127 of the Limitation Act, 1963. Article 134prescribes a limitation of one year for an application fordelivery of possession by a purchaser of immovable propertyat a sale in execution of a decree. The limitation of oneyear will be computed from the date the sale becomesabsolute. Such an application for delivery of possession canbe filed only after the decree is put into execution withinthe period of limitation as prescribed by Article 136 of theLimitation Act. The periods of limitation prescribed byArticles 136 and 134 are for two different purposes, theformer being for the execution of a decree for possession inrespect of which decree is passed and the latter for anapplication for delivery or possession of immovable propertywhich is purchased in the course of execution of a decree.The two articles have nothing in common for their operationand it is not readily understandable how the two articlesstand in conflict with each other. An application fordelivery of possession of immovable property purchased inexecution cannot, by any stretch of imagination, beconstrued as an application for execution of a decree forpossession of property so as to invoke the provision ofArticle 136 of the Limitation Act. Merely because theauction-purchaser will be deemed to be a party in the suitin which the decree has been passed, as provided in clause(a) of Explanation II to Section 47 of the Code, and byvirtue of clause (b) of Explanation II all questionsrelating to delivery of possession of the property shall bedeemed to be questions relating to execution, discharge orsatisfaction of the decree within the meaning of Section 47,an application for delivery of possession under Order 21Rule 95 of the Code of Civil Procedure cannot be equated https://hcservices.ecourts.gov.in/hcservices/ with an application for the execution of a decree forpossession so as to apply 12 years’ period of limitation asprescribed by Article 136 of the Limitation Act.11. It appears that the learned Judge of the High Courthas misunderstood the scope of the provision of Section 47of the Code of Civil Procedure and that of the provisions ofArticles 134 and 136 of the Limitation Act, 1963. It may bethat before the amendment of Section 47 of the Code, anauction-purchaser could file a suit for recovery ofpossession of the property within 12 years from the date ofsale, but in view of the amendment of Section 47 of the Codesuch a suit cannot be filed. But that is no ground forholding that Article 136 of the Limitation Act would applyto an application for delivery of possession. Under the oldLimitation Act of 1908, an application for delivery ofpossession could be made within three years from the date onwhich sale became absolute as prescribed by Article 180 ofthat Act, but under Article 134 of the Limitation Act, 1963such application can be made within one year from the dateon which sale became absolute. Thus the period of limitationfor delivery of possession of property purchased at thecourt sale has been reduced to a considerable extent, butthat also cannot be taken into consideration for the purposeof interpretation of the provisions of the Limitation Act.It is for the legislature to prescribe the period and thecourt is only to see whether any particular application hasbeen filed within that period. In the instant case, asstated already, the scope of Articles 134 and 136 and theirsubject-matters being completely different, the question ofimplied repeal of Article 134, as held by the learned Judgeof the High Court, does not at all arise. We would,accordingly, hold that Article 134 will apply to anapplication under Order 21 Rule 95 of the Code of CivilProcedure by the auction-purchaser for delivery ofpossession of the property sold in execution of a decree."10. I would like to point out that the ratio decidendi of thesaid decision is on the fact that E.P. cannot be filed after oneyear's period. However, the other decisions cited on the side of therespondents/plaintiffs herein would run thus:1. (1996) 5 SCC 48 [Pattam Khader Khan vs. PattamSardar Khan and another]. An excerpt from it would run thus: "11. Order 21 Rule 95 providing for the procedure fordelivery of property in occupation of the judgment-debtoretc., requires an application being made by the purchaserfor delivery of possession of property in respect of which a https://hcservices.ecourts.gov.in/hcservices/ certificate has been granted under Rule 94 of Order 21.There is nothing in Rule 95 to make it incumbent for thepurchaser to file the certificate along with theapplication. On the sale becoming absolute, it is obligatoryon the court though, to issue the certificate. That may, forany reason, get delayed. Whether there be failure to issuethe certificate or delay of action on behalf of the court orthe inaction of the purchaser in completing the legalrequirements and formalities, are factors which have nobearing on the limitation prescribed for the applicationunder Article 134. The purchaser cannot seek to extend thelimitation on the ground that the certificate has not beenissued. It is true though that order for delivery ofpossession cannot be passed unless sale certificate standsissued. It is manifest therefore that the issue of a salecertificate is not sine qua non of the application, sinceboth these matters are with the same court. The startingpoint of limitation for the application being the date whenthe sale becomes absolute i.e. the date on which titlepassed, the evidence of title, in the form of salecertificate, due from the court, could always be suppliedlater to the court to satisfy the requirements of Order 21Rule 95. See in this regard Babulal Nathoolal v.Annapurnabai, which is a pointer. It therefore becomes clearthat the title of the court auction-purchaser becomescomplete on the confirmation of the sale under Order 21 Rule92, and by virtue of the thrust of Section 65 CPC, theproperty vests in the purchaser from the date of sale; thecertificate of sale, by itself, not creating any title butmerely evidence thereof. The sale certificate rather is aformal acknowledgement of a fact already accomplished,stating as to what stood sold. Such act of the court ispristinely a ministerial one and not judicial. It is in thenature of a formalisation of the obvious.12. Such being the state of law on the subject, we failto see how the High Court could have come to the conclusionthat even though the sale becomes absolute on confirmationunder Order 21 Rule 92 CPC effectively passing title, thesame can only be complete when evidenced by a salecertificate issued under Order 21 Rule 94, and that unlessthe sale certificate is issued, limitation cannot start forthe purpose of an application under Order 21 Rule 95 CPC,vis-à-vis, Article 134 of the Limitation Act, 1963. The HighCourt, in our view erred in holding that it is only from thedate when a sale certificate is issued, that the limitationstarts running. Such view of the High Court would not onlycause violence to the clear provisions of Article 134 of theLimitation Act but have the effect of unsettling the lawalready settled." https://hcservices.ecourts.gov.in/hcservices/

2. (2006) 3 SCC 49 [Balakrishnan vs. Malaiyandi Konar]An excerpt from it would run thus:"13. The limitation for the purpose of Article 134starts from the date of confirmation of sale. (See GanpatSingh v. Kailash Shankar) In Pattam Khader Khan v. PattamSardar Khan this Court held that it is not from the datewhen sale certificate is issued that the limitation startsrunning. The sale becomes absolute on confirmation underOrder 21 Rule 92 of the Code effectively passing title. Itcannot be said to attain finality only when sale certificateis issued under Order 21 Rule 94. There can be variety offactors conceivable for which delay can be caused in issuinga sale certificate. The period of one-year limitation nowprescribed under Article 134 of the Limitation Act insubstitution of a three-year period prescribed under Article180 of the Limitation Act, 1908 is reflective of thelegislative policy of finalising proceedings in execution asquickly as possible by providing a quick forum to theauction-purchaser to ask for the delivery of possession ofthe property purchased within that period from the date ofthe sale becoming absolute rather than from the date ofissuance of the sale certificate. On his failure to availsuch a quick remedy the law relegates him to the remedy of aregular suit for possession based on title, subject again tolimitation."11. A plain reading of the Apex Court's judgments, would leaveno doubt in the mind of the Court that the Hon'ble Apex Court set atrest the controversy that a party who failed to avail the quickerremedy of filing an E.P. and taking delivery within one year from thedate of confirmation of sale, could file a suit for delivery within aperiod of 12 years as contemplated under the Limitation Act. On thisvery same type of controversy this Court held unambiguously andunequivocally, incontrovertibly and indubitably that filing E.P. andtaking delivery is quicker and that in no way would preclude theparty from seeking delivery of possession resorting to the common lawremedy of obtaining delivery within a period of 12 years. The recenttwo judgments of the Hon'ble Apex Court cited supra settled the lawon that point. 12. Over and above that, the learned counsel for the respondentsalso cited a decision of this Court reported in 2003(3) CTC 217 [TheNazareth Co-operative Building Society Limited, through its SpecialOfficer vs. Kanakaraj (died) and others]. An excerpt from it wouldrun thus:"18. The decision referred to above would not onlydisclose that the period of one year prescribed underArticle 134 of the Limitation Act is only for filing a https://hcservices.ecourts.gov.in/hcservices/ petition in Execution Court but also for filing a suitbased on title within a period of 12 years. The above saiddecision further would disclose that possession of theproperty can be taken by the auction purchaser not onlythrough Execution Court or by an amicable arrangement withthe judgment debtor but also by other way. But in thiscase, the respondents herein are seriously fighting withthe appellant Society from taking delivery of possessioninspite of the purchase made by the appellant Society andthat, therefore, there is no chance of taking possession byamicable settlement. But the appellant Society hasnegotiated with the tenant and had made him to attorn thetenancy in favour of the appellant Society after disposalof the appeal in C.M.A. (CS) No.9 of 1980 referred to aboveand got possession on 31.1.1983 after institution of suitin O.S.No.688 of 1979 and also appeal in A.S.No.148 of 1981referred to above.22.In Shyam Nath and others v. Durga Prasad, etc., AIR1982 ALL. 474, it has been held that the rights of auction-purchaser were extinguished by S.28 of Limitation Act.Rights, if any, would accrue in favour of judgment-debtorand not in favour of objector if the auction purchaser hadnot filed an application for delivery of possession of theproperty purchased in Court auction in execution of moneydecree within the period prescribed under the relevantArticle after the date of confirmation of sale and suitalso was not instituted within 12 years from the date whensale became absolute.23. In Uma Shanker (Dead) and others v. Sarabjeet(Dead) By L.Rs. and others, AIR 1996 SC 1005, theHonourable Apex Court was pleased to hold as follows:"On assessment of evidence, the trial Court wasright in coming to the conclusion that on account ofthe dispossession of Damri Lal after the compromisedecree, a fresh cause of action arose in his favour.There was no occasion for Damri Lal to have thecompromise decree executed since he has givenpossession under the compromise decree. It was hisdispossession thereafter which gave rise to the nextround of litigation. Such litigation is not barredunder Section 47 of the Civil Procedure Code. Section47 bars a separate suit only in respect of questionsrelating to the execution, discharge or satisfaction ofthe decree. If there is a subsequent dispossessionafter the decree for possession is complied with, asuit to obtain possession is not barred simply becausethere was an earlier decree obtained by the plaintiff https://hcservices.ecourts.gov.in/hcservices/ for possession which decree had been complied with. Infact, there will be no question of executing the earlier decree when it hasalready been complied with".25. The principles laid down by the High Courts and theHonourable Apex Court would disclose that the fact of notinitiating proceedings under Section 47 of the Code ofCivil Procedure as contemplated under Article 134 of theLimitation Act, which is for quicker remedy, cannot bar theauction purchaser to approach the competent Court undercommon law to take delivery of possession within a periodof 12 years from the date of the sale being made absolute.Therefore, the contention raised by the learned counselappearing for the respondent that the suit is barred underSection 47 of the Code of Civil Procedure cannot besustained in view of the case laws cited above."In this judgment, even the scope of Section 47 of CPC has beenconsidered and it was held that a separate suit is maintainable forobtaining delivery of possession on the strength of the Court auctionsale. Wherefore, to put simply both the Courts below au fait withlaw and au courant with facts, recognising the right of the plaintiffto obtain ex debito justitiae delivery of possession, granted therelief, warranting no interference by this Court. Hence I could seeno substantial question of law involved in this matter andaccordingly, the second appeal is dismissed. No costs.Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1. Sub Judge, Ranipet.2. District Munsif Judge, Sholinghur.1 cc To Mr.M.Sriram, Advocate, SR.181051 cc To Mr.T.R.Rajaraman, Advocate, SR.18573S.A.No.569 of 2008rsy(co)SRA(18/5/2009)