Summary
The Court referred for larger-Bench consideration the starting point of limitation for an auction purchaser’s application for possession. It expressed a prima facie disagreement with Pattam Khader Khan: Order XXI Rule 95 appeared to require prior issuance of a sale certificate, whereas Article 134 starts limitation when the sale becomes absolute. A purposive reading tied to actual certificate issuance was proposed for reconsideration; the appeal’s merits were not finally decided.
Issues
- Whether limitation for an auction purchaser’s possession application begins on sale confirmation or actual issuance of the sale certificate.
- Whether Order XXI Rule 95 permits filing before a sale certificate is granted.
- Whether the apparent statutory inconsistency requires purposive interpretation and reconsideration of Pattam Khader Khan by a larger Bench.
Provisions considered
- Order XXI Rules 92(1), 94 and 95, Code of Civil Procedure, 1908Confirmation makes the sale absolute and obliges the executing court to issue a certificate. The Bench’s prima facie reading treated issuance as necessary before applying for possession, creating tension with limitation running from confirmation. The issue was referred, not finally resolved. (¶¶ 6, 8, 9, 10, 11, 12, 13, 18, 19)
- Schedule, Article 134, Limitation Act, 1963The provision prescribes one year from when the execution sale becomes absolute. Whether its starting point should be read purposively as actual issuance of the certificate to harmonise it with Rule 95 was referred for larger-Bench decision. (¶¶ 4, 7, 8, 13, 14, 19)
- Section 5, Limitation Act, 1963Applications under Order XXI are excluded from ordinary condonation under this section. The inability to condone delay, including procedural delay in issuing the certificate, sharpened the apparent inconsistency requiring consideration. (¶ 14)
Held
- The sale was confirmed on 16 July 2009, the certificate issued on 5 February 2010, and the possession application filed on 27 July 2010. The High Court upheld the application using certificate issuance as the starting point. These facts squarely raised the difference between confirmation and issuance for limitation. (¶¶ 3, 4, 5)
- Rule 92 makes a sale absolute on confirmation; Rule 94 requires the executing court to issue a certificate bearing that date. Rule 95 also requires the specified occupancy and a certificate granted under Rule 94. The Bench considered prima facie that confirmation alone did not enable an application under Rule 95, disagreeing with the contrary reading in paragraph 11 of Pattam Khader Khan. (¶¶ 6, 8, 9, 10, 12, 13, 18)
- Issuance may be delayed by the executing court despite the purchaser being without fault; no specific statutory issuance deadline exists. Article 134 nevertheless starts its one-year period when the sale becomes absolute, and section 5 does not permit condonation for an Order XXI application. This produced an apparent inconsistency between the application prerequisite and the limitation trigger. (¶¶ 7, 8, 12, 13, 14)
- United Finance Corporation had already expressed doubts about Pattam Khader Khan but left the question open without referring it in that case. The present Bench considered reconsideration by a larger Bench necessary; it did not itself overrule the coordinate-Bench decision. (¶¶ 11, 12, 19)
- Literal interpretation normally prohibits adding, omitting or substituting words. Exceptional purposive correction of an obvious drafting anomaly requires certainty about the provision’s purpose, the inadvertent failure to achieve it and the substance of the intended provision. Applying those principles prima facie, the Bench proposed actual certificate issuance as the starting point, leaving the larger Bench to decide. (¶¶ 14, 15, 16, 17, 18, 19)
- The Registrar was directed to place the appeal and order before the Chief Justice for the appropriate administrative decision on the larger-Bench reference. No final allowance or dismissal of the appeal, or definitive ruling that the possession application was timely, was made. (¶ 19)
Result
Question concerning limitation and the sale-certificate prerequisite referred for larger-Bench consideration. Appeal and order to be placed before the Chief Justice for administrative directions; merits not finally disposed of.