BHASKER & ANR. versus AYODHYA JEWELLERS

Citation: [2023] 7 S.C.R. 964 · Decided: 10-05-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Matter referred to larger bench
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Judgment (excerpt)

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964
SUPREME COURT REPORTS
[2023] 7 S.C.R.
BHASKER & ANR.
v.
AYODHYA JEWELLERS
(Civil Appeal No. 3844 of 2023)
MAY 10, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Code of Civil Procedure, 1908 – Or. XXI, rr. 92, 94, 95 –
Limitation Act, 1963 – Art. 134 – What is the starting point of
limitation for filing an application under Rule 95 of Order XXI of
the Code of Civil Procedure, 1908 – Held: On a conjoint reading
of sub-rule (1) of r. 92 and r. 94 of Order XXI of CPC, it is apparent
that the order of confirmation of sale under sub-rule (1) of Rule 92
of Order XXI culminates into a grant of a sale certificate under
Rule 94 of Order XXI – The date of sale to be incorporated in the
sale certificate is the date of passing of the order of sale confirmation
– The very fact that Rule 94 of Order XXI incorporates a requirement
of issuing a sale certificate shows that the Legislature was of the
view that mere order of confirmation of auction may not be sufficient
– The certificate is ultimately the evidence of the fact that the auction
in favour of the person to whom a certificate is issued, has been
confirmed by the Executing Court – Prima facie, the only way of
avoiding inconsistency between Rule 95 of Order XXI of CPC and
Article 134 of the Limitation Act is to read into Article 134 that the
starting point for making an application under Rule 95 of Order
XXI of CPC is the date on which a certificate recording confirmation
of auction sale is actually issued to the purchaser – The decision of
the Co-ordinate Bench in the case of Pattam Khader Khan requires
reconsideration by the larger Bench – In view of the Court, the
larger Bench will have to decide the issue relating to the starting
point of limitation for making an application under Rule 95 of Order
XXI of CPC.
AFCONS Infrastructure Limited and Anr. v. Cherian
Varkey Construction Company Private Limited and Ors.
(2010) 8 SCC 24 : [2010] 8 SCR 1053; Inco Europe
Limited and Ors. v. First Choice Distribution (A Firm)
and Ors. (2000) 2 ALL ER 109; Surjit Singh Kalra v.
[2023] 7 S.C.R. 964
964
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Union of India and Anr. (1991) 2 SCC 87 : [1991] 1
SCR 364 – relied on.
United Finance Corporation v. M.S.M. Haneefa (dead)
thr. LRs. (2017) 3 SCC 123 : [2017] 1 SCR 583 –
referred to.
Pattam Khader Khan v. Pattam Sardar Khan & Anr.
(1996) 5 SCC 48 : [1996] 3 Suppl. SCR 320 – requires
reconsideration.
Case Law Reference
[2017] 1 SCR 583
referred to
Para 3
[1996] 3 Suppl. SCR 320
requires
Para 4
reconsideration
[2010] 8 SCR 1053
relied on
Para 15
[1991] 1 SCR 364
relied on
Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3844
of 2023.
Arising Out of Special Leave Petition (C) No. 3714 of 2018.
From the Judgment and Order dated 11.04.2017 of the High Court
of Kerala at Ernakulam in CRP No. 181 of 2016.
Sreegesh M. K., Ms. Neha Sharma, Mahesh Agarwal, Advs. for
the Petitioners.
Arun K. Sinha, Sharad Agrawal, Rohan Goel, Rakesh Singh, Advs.
for the Respondent.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
1. Leave granted.
FACTUAL ASPECTS
2. The issue which arises for consideration in this appeal is what
is the starting point of limitation for filing an application under Rule 95 of
Order XXI of the Code of Civil Procedure, 1908 (for short, ‘CPC’).
BHASKER & ANR. v. AYODHYA JEWELLERS
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SUPREME COURT REPORTS
[2023] 7 S.C.R.
3. The property subject matter of this appeal held by the appellants
was sold in execution of a decree passed against the appellants in a
public auction. The respondent is the purchaser of the property. The
order of confirmation of sale in accordance with sub-rule (1) of Rule 92
of Order XXI of CPC was passed on 16th July 2009. The sale certificate
under Rule 94 of Order XXI of CPC was issued by the Executing Court
to the respondent on 5th February 2010. On 27th July 2010, the respondent
filed an application under Rule 95 of Order XXI of CPC before the
Executing Court. The said application was allowed by the Executing
Court. The appellants applied for a review of the said order. The prayer
for review was dismissed by the Executing Court. The appellants
challenged the orders of the Executing Court by filing a Civil Revision
Application before the High Court of Judicature at Kerala. By the
judgment dated 11th April 2017, which is impugned in this appeal, the
High Court dismissed the revision application by holding that the starting
point of limitation for making an application under Rule 95 of Order XXI
w
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