BHASKER & ANR. versus AYODHYA JEWELLERS on 10 May 2023

1. Leave granted.

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FACTUAL ASPECTS

2. The issue which arises for consideration in this appeal is whatis the starting point of limitation for filing an application under Rule 95 ofOrder XXI of the Code of Civil Procedure, 1908 (for short, ‘CPC’).

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A3. The property subject matter of this appeal held by the appellantswas sold in execution of a decree passed against the appellants in apublic auction. The respondent is the purchaser of the property. Theorder of confirmation of sale in accordance with sub-rule (1) of Rule 92of Order XXI of CPC was passed on 16[th] July 2009. The sale certificateunder Rule 94 of Order XXI of CPC was issued by the Executing CourtBto the respondent on 5[th] February 2010. On 27[th] July 2010, the respondentfiled an application under Rule 95 of Order XXI of CPC before theExecuting Court. The said application was allowed by the ExecutingCourt. The appellants applied for a review of the said order. The prayerfor review was dismissed by the Executing Court. The appellantsCchallenged the orders of the Executing Court by filing a Civil RevisionApplication before the High Court of Judicature at Kerala. By thejudgment dated 11[th] April 2017, which is impugned in this appeal, theHigh Court dismissed the revision application by holding that the startingpoint of limitation for making an application under Rule 95 of Order XXIwas the date on which the sale certificate was issued by the ExecutingDCourt. The High Court relied upon the decision of this Court in the caseof United Finance Corporation v. M.S.M. Haneefa (dead) thr. LRs.[1]

SUBMISSIONS OF THE PARTIES

4. The learned counsel appearing for the appellants invited ourEattention to Article 134 of the Schedule to the Limitation Act, 1963 (forshort, ‘the Limitation Act’). He pointed out that Article 134 is specificallyapplicable to an application made under Rule 95 of Order XXI of CPC.It provides one year for filing such an application from the date the salebecomes absolute. He submitted that in this case, the sale was confirmedon 16[th] July 2009, and the application was moved by the respondentFafter more than one year i.e. on 27[th] July 2010. He relied upon a decisionof this Court in the case of Pattam Khader Khan v. Pattam SardarKhan & Anr[2]. He submitted that this Court has clearly held that thestarting point of limitation for filing an application under Rule 95 of OrderXXI of CPC is the date on which the auction sale is made absolute inGaccordance with sub-rule (1) of Rule 92 of Order XXI of CPC. Hesubmitted that the High Court committed an error by relying upon thedecision in the case of United Finance Corporation[1]. In the said case,a revision application against the order rejecting the application for setting 1 (2017) 3 SCC 123H2 (1996) 5 SCC 48

aside the sale was filed before the High Court in which, furtherproceedings were stayed. While computing the limitation, the period ofstay was excluded and that is how this Court held that the applicationmade in the said case was within limitation.

5. The submission of the learned counsel appearing for therespondent in support of the impugned order is that the application madeby the respondent will be governed by residuary Article 137 of theLimitation Act, which provides for a period of limitation of three years.He would, therefore, submit that in any case, the decision of this Courtin the case of United Finance Corporation[1 ]has been rightly applied bythe High Court.

OUR VIEW

6. We have carefully considered the submissions. It is necessaryto reproduce Rules 92, 94 and 95 of Order XXI of CPC, which readthus:

“92. Sale when to become absolute or be set aside.-

(1) Where no application is made under rule 89, rule 90 orrule 91, or where such application is made and disallowed,the Court shall make an order confirming the sale, andthereupon the sale shall become absolute.

Provided that, where any property is sold in execution of decreepending the final disposal of any claim to, or any objection tothe attachment of, such property, the Court shall not confirmsuch sale until the final disposal of such claim or objection.

(2) Where such application is made and allowed, and where, inthe case of an application under rule 89, the deposit required bythat rule is made within sixty days from the date of sale, or incases where the amount deposited under rule 89 is found to bedeficient owing to any clerical or arithmetical mistake on the partof the depositor and such deficiency has been made good withinsuch time as may be fixed by the court, the Court shall make anorder setting aside the sale: Provided that no order shall be madeunless notice of the application has been given to all personsaffected thereby:

Provided further that the deposit under this sub-rule may bemade within sixty days in all such cases where the period of A

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thirty days, within which the deposit had to be made, has notexpired before the commencement of the Code of CivilProcedure (Amendment) Act, 2002.

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(3) No suit to set aside an order made under this rule shall bebrought by any person against whom such order is made.

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(4) Where a third party challenges the judgment-debtor’s title byfiling a suit against the auction-purchaser, the decree-holder andthe judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shalldirect the decree holder to refund the money to the auction-purchaser, and where such an order is passed the executionproceeding in which the sale had been held shall, unless the Courtotherwise directs, be revived at the stage at which the sale wasordered.”

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“94. Certificate to purchaser.- Where a sale of immoveableproperty has become absolute, the Court shall grant a certificatespecifying the property sold and the name of the personwho at the time of sale is declared to be the purchaser.Such certificate shall bear date the day on which the saleEbecame absolute.

95. Delivery of property in occupancy of judgment -debtor.-Where the immoveable property sold is in the occupancy of thejudgment--debtor or of some person on his behalf or of someperson claiming under a title created by the judgment debtorsubsequently to the attachment of such property and a certificatein respect thereof has been granted under rule 94, theCourt shall, on the application of the purchaser, order deliveryto be made by putting such purchaser or any person whom hemay appoint to receive delivery on his behalf in possession of theproperty, and, if need be, by removing any person who refuses tovacate the same.”

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7. Article 134 of the Limitation Act, 1963 is also material, whichreads thus:

8. Article 134 provides that the starting point of limitation formaking an application under Rule 95 of Order XXI is the date on whichthe sale is confirmed. Under Rule 92 of Order XXI, the Executing Courtis required to pass an order making an order of confirmation of sale.Upon passing the said order, the sale becomes absolute. Rule 94 ofOrder XXI requires a sale certificate to be issued to the purchaser.However, the date of the certificate shall be the date on which the salebecame absolute. Rule 95 of Order XXI of CPC, on its plain reading,incorporates two conditions, which are as under:

i.The immovable property sold must be in occupancy of thejudgment-debtor or of some person on his behalf or of someperson claiming under title created by the judgment-debtor,subsequent to the attachment of the property; and

ii. A certificate in respect of the sale has been granted underRule 94 of Order XXI of CPC.

Only if both conditions are fulfilled, the Executing Court, on theapplication of the purchaser, is empowered to pass an order of deliveryof possession of putting the purchaser in possession of the auctionedproperty. Thus, on the one hand, Rule 95 of Order XXI mandates that anapplication for possession of the auctioned property can be made by theauction-purchaser only after a sale certificate in accordance with Rule94 of Order XXI is issued. But on the other hand, the starting point formaking an application under Rule 95 of Order XXI, in accordance withArticle 134 of the Limitation Act, is the date on which the sale is madeabsolute in accordance with Rule 92 of Order XXI. It is the obligation ofthe Executing Court to issue the sale certificate as per Rule 94 of OrderXXI of CPC. In practice, we often notice a substantial delay in issuingthe sale certificate. In this case, the delay is of more than six months. In A

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Amany cases, there is a procedural delay in issuing the sale certificate forwhich no fault can be attributed to the auction purchaser.

9. Paragraphs 11 and 12 of the decision of this Court in the caseof Pattam Khader Khan[2]read thus:

“11. Order 21 Rule 95 providing for the procedure for delivery ofproperty in occupation of the judgment-debtor etc., requires anapplication being made by the purchaser for delivery of possessionof property in respect of which a certificate has been grantedunder Rule 94 of Order 21. There is nothing in Rule 95 tomake it incumbent for the purchaser to file the certificatealong with the application. On the sale becoming absolute,it is obligatory on the court though, to issue the certificate.That may, for any reason, get delayed. Whether there befailure to issue the certificate or delay of action on behalf ofthe court or the inaction of the purchaser in completing thelegal requirements and formalities, are factors which haveno bearing on the limitation prescribed for the applicationunder Article 134. The purchaser cannot seek to extend thelimitation on the ground that the certificate has not been issued. Itis true though that order for delivery of possession cannotbe passed unless sale certificate stands issued. It is manifesttherefore that the issue of a sale certificate is not “sine quanon” of the application, since both these matters are withthe same court. The starting point of limitation for theapplication being the date when the sale becomes absolutei.e. the date on which title passed, the evidence of title, inthe form of sale certificate, due from the court, could alwaysbe supplied later to the court to satisfy the requirements ofOrder 21 Rule 95. See in this regard Babulal Nathoolalv. Annapurnabai [AIR 1953 Nag 215 : ILR 1953 Nag 557] ,which is a pointer. It therefore becomes clear that the title of thecourt auction-purchaser becomes complete on the confirmationof the sale under Order 21 Rule 92, and by virtue of the thrust ofSection 65 CPC, the property vests in the purchaser from thedate of sale; the certificate of sale, by itself, not creating any titlebut merely evidence thereof. The sale certificate rather is a formalacknowledgement of a fact already accomplished, stating as towhat stood sold. Such act of the court is pristinely a ministerial B

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one and not judicial. It is in the nature of a formalisation of theobvious.

12. Such being the state of law on the subject, we fail to see howthe High Court could have come to the conclusion that even thoughthe sale becomes absolute on confirmation under Order 21 Rule92 CPC effectively passing title, the same can only be completewhen evidenced by a sale certificate issued under Order 21 Rule94, and that unless the sale certificate is issued, limitation cannotstart for the purpose of an application under Order 21 Rule 95CPC, 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 law alreadysettled.”

10. Paragraph 11 takes the view that there is nothing in Rule 95 ofOrder XXI which makes it incumbent for the purchaser to file a salecertificate along with the application. However, on a plain reading ofRule 95 of Order XXI, unless a certificate of sale is granted under Rule94 of Order XXI, the auction-purchaser does not get a right to apply fordelivery of possession by invoking Rule 95 of Order XXI. Therefore, theview expressed in paragraph 11, prima facie, may not be correct. Thesaid view is not supported by the plain language of Rule 95 of OrderXXI of CPC.

11. At this stage, we may note here the decision of this Court inthe case of United Finance Corporation[1]. In paragraph 11, the Benchexpressed doubt about the correctness of what is held in paragraph 11of Pattam Khader Khan’s case[2]. Paragraph 11 of the decision in thecase of United Finance Corporation[1 ]reads thus:

“11. By careful reading of Order 21 Rule 95 CPC, the languageof the provision is indicative that application for delivery ofpossession of property purchased in the court auction can be filedwhere “a certificate in respect thereof has been granted underRule 94 of Order 21”. Having regard to the language of Order 21Rule 95 CPC “a certificate in respect thereof has been granted in AB

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SUPREME COURT REPORTS

ARule 94, the court shall, on the application of the purchaser, orderdelivery to be made…” we have our own doubts regardingthe view taken by this Court in Pattam Khader Khancase [Pattam Khader Khan v. Pattam Sardar Khan, (1996)5 SCC 48] that “…there is nothing in Rule 95 to make itincumbent for the purchaser to file the certificate along withBthe application” and “… that the issuance of sale certificateis not a sine qua non of the application …”. However, inthe facts and circumstances of the present case, we are notinclined to refer the question to a larger Bench — whetherissuance of sale certificate is a sine qua non or not for filingCthe application under Order 21 Rule 95CPC and thequestion is left open.”

However, considering the facts of the case before it, this Courtobserved that it was not inclined to refer the question to a larger Bench.DTherefore, a Co-ordinate Bench has already expressed a prima facieview that what is held in paragraph 11 of Pattam Khader Khan’s case[2],may require reconsideration by a larger Bench.

12. We have already noted the twin conditions which should befulfilled as a condition precedent for enabling the Executing Court toEpass an order of delivery of possession in favour of the auction-purchaser.One of the two conditions is that the auction-purchaser who appliesunder Rule 95 of Order XXI of CPC for delivery of possession, mustpossess a sale certificate issued under Rule 94 of Order XXI of CPC.Once there is a confirmation of an auction sale in accordance with sub-Frule (1) of Rule 92 of Order XXI of CPC, the Executing Court, in theabsence of the prohibitory order of a superior Court, is under an obligationto issue a sale certificate to the auction-purchaser in accordance withRule 94 of Order XXI of CPC. However, the law does not provide for aspecific time limit within which, a certificate under Rule 94 of OrderXXI of CPC should be issued. In a given case, there can be a longGprocedural delay in issuing the sale certificate for which the auctionpurchaser cannot be blamed. In the present case, the delay is of morethan six months. With greatest respect to the decision of this Court in thecase of Pattam Khader Khan[2], prima facie, we are unable to agreewith the view that an application under Rule 95 of Order XXI can beH3 (2010) 8 SCC 24

made even before the certificate of sale is granted to the auction-purchaser in accordance with Rule 94 of Order XXI of CPC.

13. Therefore, in our prima facie view, the order of confirmationof sale under sub-rule (1) of Rule 92 of Order XXI of CPC does not givea cause of action to the auction-purchaser to apply for possession byinvoking Rule 95 of Order XXI of CPC. He cannot make such anapplication unless the Executing Court issues a sale certificate. ThoughCPC does not permit an application under Rule 95 of Order XXI to befiled before the sale certificate is issued, Article 134 of the LimitationAct proceeds on the footing that cause of action becomes available tothe auction-purchaser to apply for possession on the basis of the orderof confirmation of sale made under sub-rule (1) of Rule 92 of OrderXXI of CPC.

14. Therefore, there is an apparent inconsistency between theprovisions of Rule 95 of Order XXI of CPC and Article 134 of theLimitation Act. The question is whether the rule of purposive interpretationcan be used to set right the inconsistency or anomaly. We may note herethat even if the delay is on the part of the Executing Court in the issue ofthe sale certificate, the delay in filing an application under Rule 95 ofOrder XXI cannot be condoned as Section 5 of the Limitation Act is notapplicable to the applications filed under Order XXI.

15. In paragraphs 20 and 21 of the decision of this Court in thecase of AFCONS Infrastructure Limited and Anr. v. Cherian VarkeyConstruction Company Private Limited and Ors.[3], the issue ofpurposive interpretation has been discussed in detail. The said twoparagraphs read thus:

“20. The principles of statutory interpretation are well settled.Where the words of the statute are clear and unambiguous, theprovision should be given its plain and normal meaning, withoutadding or rejecting any words. Departure from the literal rule, bymaking structural changes or substituting words in a clear statutoryprovision, under the guise of interpretation will pose a great riskas the changes may not be what the legislature intended or desired.Legislative wisdom cannot be replaced by the Judge’s views. Asobserved by this Court in a somewhat different context:

“6. … When a procedure is prescribed by the legislature, it isnot for the court to substitute a different one according to its ABC

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Anotion of justice. When the legislature has spoken, the judgescannot afford to be wiser.”

(See Shri Mandir Sita Ramji v. Lt. Governor ofDelhi [(1975) 4 SCC 298] , SCC p. 301, para 6.)

21. There is however an exception to this general rule.BWhere the words used in the statutory provision are vagueand ambiguous or where the plain and normal meaning ofits words or grammatical construction thereof would leadto confusion, absurdity, repugnancy with other provisions,the courts may, instead of adopting the plain and grammaticalCconstruction, use the interpretative tools to set right thesituation, by adding or omitting or substituting the wordsin the statute. When faced with an apparently defective provisionin a statute, courts prefer to assume that the draftsman hadcommitted a mistake rather than concluding that the legislaturehas deliberately introduced an absurd or irrational statutoryDprovision. Departure from the literal rule of plain and straightreading can however be only in exceptional cases, where theanomalies make the literal compliance with a provision impossible,or absurd or so impractical as to defeat the very object of theprovision. We may also mention purposive interpretation to avoidEabsurdity and irrationality is more readily and easily employed inrelation to procedural provisions than with reference to substantiveprovisions.”

16. As a normal rule, while interpreting the statute, the Court willFnot add words or omit words or substitute words. However, there is awell-recognized exception to this rule which is found in a decision of theHouse of Lords in the case of Inco Europe Limited & Ors. v. FirstChoice Distribution (A Firm) & Ors.[4], wherein the Court held thus:

“The court must be able to correct obvious drafting errors.GIn suitable cases, in discharging its interpretative functionthe court will add words, or omit words or substitute words.Some notable instances are given in Professor Sir Rupert Cross’sadmirable opuscule, Statutory Interpretation, 3[rd] ed.(1995), pp.93-105. He comments at p.103:

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“In omitting or inserting words the judge is not really engagedin a hypothetical reconstruction of the intentions of the drafteror the legislature, but is simply making as much sense as hecan of the text of the statutory provision read in its appropriatecontext and within the limits of the judicial role.”

This power is confined to plain cases of drafting mistakes. Thecourts are ever mindful that their constitutional role in this field isinterpretative. They must abstain from any course which mighthave the appearance of judicial legislation. A statute is expressedin language approved and enacted by the legislature. So, the courtsexercise considerable caution before adding or omitting orsubstituting words. Before interpreting a statute in this waythe court must be abundantly sure of three matters: (1) theintended purpose of the statute or provision in question;(2) that by inadvertence the draftsman and Parliament failedto give effect to that purpose in the provision in question;and (3) the substance of the provision Parliament wouldhave made, although not necessarily the precise wordsParliament would have used, had the error in the Bill beennoticed. The third of these conditions is of crucialimportance. Otherwise any attempt to determine the meaning ofthe enactment would cross the boundary between constructionand legislation.”

17. The principle laid down in the said decision was reiterated bythis Court in the case of Surjit Singh Kalra v. Union of India & Anr[5].In paragraph 19, this Court held thus:

“19. True it is not permissible to read words in a statute whichare not there, but “where the alternative lies between eithersupplying by implication words which appear to have beenaccidentally omitted, or adopting a construction which deprivescertain existing words of all meaning, it is permissible to supplythe words” (Craies Statute Law, 7th edn., p. 109). Similar are theobservations in Hameedia Hardware Stores v. B. Mohan LalSowcar [(1988) 2 SCC 513, 524-25] where it was observed thatthe court construing a provision should not easily read into it words A

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Awhich have not been expressly enacted but having regard to thecontext in which a provision appears and the object of the statutein which the said provision is enacted the court should construe itin a harmonious way to make it meaningful. An attempt mustalways be made so to reconcile the relevant provisions as toadvance the remedy intended by the statute. (See: Sirajul HaqBKhan v. Sunni Central Board of Waqf [1959 SCR 1287, 1299 :AIR 1959 SC 198].)”

18. Coming back to the relevant provisions of Order XXI of CPC,on a conjoint reading of sub-rule (1) of Rule 92 and Rule 94 of OrderXXI of CPC, it is apparent that the order of confirmation of sale underCsub-rule (1) of Rule 92 of Order XXI culminates into a grant of a salecertificate under Rule 94 of Order XXI. The date of sale to beincorporated in the sale certificate is the date of passing of the order ofsale confirmation. The very fact that Rule 94 of Order XXI incorporatesa requirement of issuing a sale certificate shows that the LegislatureDwas of the view that mere order of confirmation of auction may not besufficient. The certificate is ultimately the evidence of the fact that theauction in favour of the person to whom a certificate is issued, has beenconfirmed by the Executing Court.

19. Prima facie, it appears to us that the only way of avoidingEinconsistency between Rule 95 of Order XXI of CPC and Article 134 ofthe Limitation Act is to read into Article 134 that the starting point formaking an application under Rule 95 of Order XXI of CPC is the dateon which a certificate recording confirmation of auction sale is actuallyissued to the purchaser. Such interpretation will satisfy the three testslaid down in the case of Inco Europe Limited & Ors.[4] Therefore, inFour considered view, the decision of the Co-ordinate Bench in the caseof Pattam Khader Khan[2 ]and especially, what is held in paragraph 11,requires reconsideration by the larger Bench. In our considered view,the larger Bench will have to decide the issue relating to the startingpoint of limitation for making an application under Rule 95 of Order XXIGof CPC. We direct the Registrar (J-I) to place this appeal along with acopy of this order before the Hon’ble Chief Justice of India to enablehim to take appropriate decision on the administrative side.

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Ankit Gyan(Assisted by : Sarika Thakare and Mahendra Yadav, LCRAs)

Matter referred to larger Bench.