LexGANPAT SINGH (DEAD) BY LRS. versus KAILASH SHANKAR & ORS.
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GANPAT SINGH (DEAD) BY LRS. v. KAILASH SHANKAR & ORS. MAY 8, 1987. A· [E.S. VENKATARAMIAH AND M.M. DUTT, JJ.] B Limitation Act, 1963: Articles 134 & 136-Scope and applicability of-Application by auction purchaser under Order XXI Rule 95 CPC for delivery of possession of property sold in execution of decree-Period of limitation prescribed in Article 134 and not Article 136 applicable-Position not changed by C insertion of Explanation II to Section 47 CPC by CPC (Amendment) Act 1976. Civil Procedure Code 1908: Application for delivery of possession cannot be equated to an application for execution of D decree. The mortgagee decree-holder in execution of the final decree for mortgage, himself purchased the disputed property in the auction sale held on July 14, 1978. On September 20, 1978 the judgment-debtor, the predecessor-in-interest of the appellants, filed an application under E Order XXI Rule 90 of the Code of Civil Procedure for setting aside the aforesaid sale. Two other petitions of objections were filed, one of these being by another judgment-debtor. All these objections including the application under Order XXI Rule 90 of the Code of Civil Procedure were dismissed for default. Consequently, the sale was confirmed by the District Judge, the executing Court on January 2, 1979. F On July 17, 1980 more than one year after the sale was confirmed the decree-holder auction-purchaser rited an application under Order XXI Rule 95 of the Code of Civil Procedure for delivery of possession of the property auctioned-purchased by him. This application was G opposed by the judgment-debtor on the ground that as the application was filed more than one year after the confirmation of sale it was barred by limitation under Article 134 of the Limitation Act. The District Judge held that in view of Explanation II of Section 47 which was inserted in the Code of Civil Procedure, by Section 20 of H 355 •• ~- - -------------- 356 SUPREME COURT REPORTS [1987] 3.S.C.R. A the Code of Civil Procedure (Amendment) Act, 1974, Article 136 pres· crlbing a period of limitation of 12 years for the execution of the decree and not Article 134 of the Limitation Act would be applicable, and held that the application was not barred by limitation and directed issuance of the warrant of possession in respect of the disputed property. B The judgment-debtor filed a revision application under section 115 of the Code of Civil Procedure and a Single Judge of the High Court dismissed the revision application. The High Court held that after the Insertion of Explanation II to Section 47 of the Code' of Civil Procedure, the purchaser of property at a sale in execution of a decree would be deemed to be a party to the suit in which the decree was passed, and all C questions relating to the delivery of possession of the property to such purchaser of immovable property would be questions relating to the execution of the decree and, as such, Article 136 and not Article 134 of the Limitation Act would apply. It was also held after the amendment of the Code of Civil Procedure, Article 134 and Article 13'i of the Li mi ta· D lion act became so inconsistent that both could not exist and that Article 134 stood Impliedly repealed by Section 47 of the Code of Civil Proce· dure read with Article 13'i of the Limitation Act. E A certificate for appeal to this Court under Article 134A of the Constitution, was granted by the Single Judge. As the certificate on the basis of which the appeal was filed was not competent in view of clause III of Article 133, the appeal was treated as one under Article 13'i. After conclusion of the hearing, the parties settled the dispute, the F respondent decree-holder agreeing to relinquish all his rights as the auction-purchaser upon the appellants paying an agreed amount. In spile of such settlement the Court felt the necessity· of laying down the correct legal position. G Setting aside the judgment of the Single Judge of the High Court and that of the District Court, ·f ~ HELD: 1. Article 134 of the Limitation Act, 1963 would apply to an application under Order XXI Rule 95 of the Code of Civil Procedure by the auction-purchaser for delivery of possession of the property sold H in execution ofa decree. [3'i3G] • •J - GANPAT v. KAILASH 357 2. The Single Judge of the High Court has misunderstood the A scope of the provision of section 47 of the Code of Civil
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