# Abdul Rahman v. Vth A.D.J. and others

- **Citation:** (2005) 3 ILRA 863
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-21
- **Case number:** Civil Misc. Writ petition No. 7809 of 1996
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-rahman-v-vth-a-d-j-and-others-40595
- **Pages:** 3

## Headnote

Sri A.K. Dwivedi
Sri A.I. Naqvi
Sri A.K. Tiwari
S.C.

Indian
Limitation
Act-1963-S-134readwith Code of Civil Procedure-Order
21 rule 95-Application for delivery of
possession by the auction purchaserobjection raised regarding limitationrejected
on
the
ground
earlier
application about sale certificate-the
same objection of limitation has been
rejected-held-illegal-application
under
Order 21 rule 95 for possession is
entirely
different
cause
of
actionpetitioner can not be deprived from
raising objection including the limitation.

Held: Para 6

It
is
not
denied
that
earlier
the
application was filed with respect to
issuance of sale certificate and not
possession.
The
functional
facts
in
disposing off the application under Order
XXI Rule 95 are different and the
petitioner was well within his right to
have raised the objection of limitation
which was clearly applicable and he
cannot be estopped by any principle
including that of res judicata. In any
event, making an application under
Order XXI Rule 95 was fresh cause of
auction and the petitioner cannot be
deprived
of
raising
his
objections
including on the ground of limitation.
Case law discussed:
AIR 1932 Cal.-75
AIR 1979 Alld.-411
AIR 1953 Nag.-215
AIR 1987 SC-1443

(Delivered Hon'ble D.P. Singh, J.)

## Text

3 All] Abdul Rahman V. Vth A.D.J. and others
863
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2005

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ petition No. 7809 of 1996

Abdul Rahman

...Petitioner
Versus
Vth Additional District Judge and others

 ...Respondents

Counsel for the Petitioner:
Sri Dhurya Narayana
Sri Bala Krishna Narayana

Counsel for the Respondents:
Sri A.K. Dwivedi
Sri A.I. Naqvi
Sri A.K. Tiwari
S.C.

Indian
Limitation
Act-1963-S-134readwith Code of Civil Procedure-Order
21 rule 95-Application for delivery of
possession by the auction purchaserobjection raised regarding limitationrejected
on
the
ground
earlier
application about sale certificate-the
same objection of limitation has been
rejected-held-illegal-application
under
Order 21 rule 95 for possession is
entirely
different
cause
of
actionpetitioner can not be deprived from
raising objection including the limitation.

Held: Para 6

It
is
not
denied
that
earlier
the
application was filed with respect to
issuance of sale certificate and not
possession.
The
functional
facts
in
disposing off the application under Order
XXI Rule 95 are different and the
petitioner was well within his right to
have raised the objection of limitation
which was clearly applicable and he
cannot be estopped by any principle
including that of res judicata. In any
event, making an application under
Order XXI Rule 95 was fresh cause of
auction and the petitioner cannot be
deprived
of
raising
his
objections
including on the ground of limitation.
Case law discussed:
AIR 1932 Cal.-75
AIR 1979 Alld.-411
AIR 1953 Nag.-215
AIR 1987 SC-1443

(Delivered Hon'ble D.P. Singh, J.)

1. Pleadings are complete and the
counsel for the parties agree that the
petition may finally be disposed off under
the Rules of the Court.

Heard counsel for the parties.

2. This writ petition is directed
against the orders dated 4.5.1991 and
5.1.1996
whereby
objection
of
the
petitioner
against
the
delivery
of
possession of the disputed house has been
rejected by both the courts below.

3. Father of the respondent no. 3
filed a money suit no. 285 of 1959 for
recovery of sum of Rs.400/-, which was
decreed. An execution application was
filed by him which was registered as
execution case no. 186 of 1963 wherein
the disputed house was sold in a court
auction on 29.3.1964 and was purchased
by the decree holder himself. The sale
was made absolute on 21.4.1964. After
his death, the respondent no. 3 filed suit
no. 225 of 1983 for permanent injunction
to restrain the petitioner from interfering
in the possession of the disputed house
wherein the petitioner allegedly resided.
The suit was dismissed vide judgment and
order dated 9.2.1988. After dismissal of
the suit, the respondent no. 3 filed an
application dated 17.3.1988 under Order
XXI Rule 94 for issuance of a sale
864 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
certificate on the basis of the aforesaid
auction
sale
dated
19.3.1964.
The
petitioner filed objections against the said
application on several grounds including
that of limitation. Both the courts below
rejected the objections of the petitioner
and allowed the application of the
respondent no. 3 vide orders dated
8.12.1989 and 27.3.1990. Thereafter, the
respondent no. 3 made an application
under Order XXI Rule 95 for delivery of
possession. The petitioner again filed his
objection
inter-alia
stating
that
the
application was hopelessly barred by time
as the application was not made within a
period of one year as prescribed under
Article 134 of the Limitation Act. Both
the courts below have rejected the
objection holding that limitation would
run from the date of delivery of sale
certificate and thus the application was
within time. The court also held that the
petitioner was estopped from raising
question
of
limitation
again
in
proceedings under Order XXI Rule 95
since the same objection has already been
rejected
while
disposing
off
his
application under Order XXI Rule 94.

4. Learned counsel for the petitioner
has urged that sine quo non to the filing of
an application under Order XXI Rule 95
was only that the sale should have
become absolute and the limitation would
not run from the date the sale certificate is
issued. In support of his contention he has
relied upon a decision of this Court in the
case Sukh Lal Vs. Ghasi Ram [AIR
1979 Allahabad 411] and a Division
Bench in the case of Babu Lal Vs.
Annapurnabai [AIR 1953 Nagpur 215].
For the proposition that in the facts of the
case Article 134 and not Article 136
would apply. He has relied upon the ratio
of the Apex Court in the Case of Ganpat
Singh Vs. Kailash Shankar [AIR 1987
SC 1443].

5. Before the Court deals with the
arguments, it would be appropriate to
examine Rule 95 of Order 21 which is
quoted below.

"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."

It would be also relevant to quote Article
134.
Art.
134.
For
delivery
of
possession by a
purchaser
of
immovable
property at a sale
in execution of a
decree.
One
year
When the
sale
becomes
absolute.

6. A joint reading of the two
provisions shows that on the application
being made by the auction purchaser
within a period of one year from the date
the sale is made absolute, the court shall
order delivery of possession of the said
immovable property under a title created
by the auction sale. A Single Judge of our
3 All] Ashok Kumar Chaturvedi V. Union of India and others
865
Court in the case of Sukh Lal and the
Division Bench of Nagpur in Babu Lal
(Supra) have unequivocally held that
limitation is to be computed from the date
on which the sale has become absolute
and not from the date the sale certificate is
issued. This view is also supported by a
Division Bench of the Calcutta High
Court in the case of Smt. Anarjan Bibi
Vs. Chandramani [AIR 1932 Calcutta
75] where it held, after examining the
order XXI Rule 94 that..... ''the only effect
of that is that no order can be made until
the certificate has been issued, and not
that an application under either rule
should on that account be delayed.
Besides on the sale becoming absolute it
is more or less within the power of the
auction purchaser to get the sale
certificate as soon as he wants, because
the intention of the legislature as
expressed in the wording of Order XXI
Rule 94, is to issue the certificate with all
convenient speed.....' In the present case,
there is absolutely no reason given by the
respondent no. 3 why no effort was made
for obtaining the sale certificate within a
reasonable time. It is not denied that the
sale had become absolute on 21.4.1964
and father of the petitioner died in 1976
i.e. more than a decade after the sale had
become absolute. Even respondentno.3
applied for obtaining sale certificate only
on 17.3.1988 i.e. about a quarter of
century after the actual auction sale. The
contention of the learned counsel for the
respondent that once bar of limitation had
been pleaded and decided against the
petitioner in the execution proceedings, he
cannot be allowed to again raise the bar of
the
limitation
in
the
execution
proceedings, is without any merit. It is not
denied that earlier the application was
filed with respect to issuance of sale
certificate
and
not
possession.
The
functional facts in disposing off the
application under Order XXI Rule 95 are
different and the petitioner was well
within his right to have raised the
objection of limitation which was clearly
applicable and he cannot be estopped by
any principle including that of res
judicata. In any event, making an
application under Order XXI Rule 95 was
fresh cause of auction and the petitioner
cannot
be deprived of raising his
objections including on the ground of
limitation.

For the reason given above this petition
succeeds and is allowed and the impugned
orders dated 4.5.1991 and 5.1.1996 are
hereby quashed. No order as to cost.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Re-Civil Misc. Recall Application No.
195804 of 2005
In
Civil Misc. Writ Petition No. 59635 of 2005

Ashok Kumar Chaturvedi
...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Rishi Kant Rai

Counsel for the Respondents:
Sri K.C. Sinha
Sri Anil Kumar Mehrotra
Sri Santosh Kumar Pandey
Sri B.S. Yadav

High Court Rules 1952-Chapter V, Rule12-Practice of Procedure Tied up cases