Srungavarapu Venkateshwara Rao vs Kolla Ramaiah

B.K. Somasekhara, J.—The order of the learned Subordinate Judge, Parchur dated 30-6-1997 is challenged by the petitioner who is the judgment-debtor in E.A. 157/97 in E.A.No. 224/84 in E.P.18/67 concerning decree in O.S.No.22/65.Thepetitioner is the judgment-debtor whose property was sold in execution sale. After so many proceedings between the parties, wherein E.A.224/84 in E.P.18/67 filed by the auction-purchaser which was dismissed for default, came to be restored to file by an order of this Court in C.R,P.No.2495/94 dated 15-10-1996. The learned Subordinate Judge passed the impugned order directing delivery of Item-3 of the sale certificate to the respondent-auction purchaser. The flood of facts and controversies solidifies into these admitted positions. The property was sold on 6-11-1967 in favour of the respondent. E.A.796/97 was filed by the Official Receiver under Order 21, Rule 90 C.P.C. to set aside the sale which came to be dismissed on 5-7-1968. The sale was thereby confirmed by dismissing the application filed by the official receiver. The matter was taken in appeal before this Court in A.A.O.219/68 which came to be allowed on 16-8-1968 remanding the matter to the trial Court on 17-6-1969. An order passed by the learned Subordinate Judge, dated 3-12-1975 which was again challenged in A.A.O.No.25/76 before this Court was set aside and the matter was remitted back on 10-2-1978 which came to be again dismissed by the trial Court on 5-11-1983. Thereafter, the respondent filed application in E.A.224/84 for delivery of the possession of the items sold in the Court sale. Ultimately, the impugned order was passed.

Mr. Valluru, learned Advocate for the petitioner has contended that as per the settled law in Pattan Sardar Khan Vs. Pattan Rasool Khan and Another, , the limitation to seek delivery of possession by the auction-purchaser commences from the date of issuing sale certificate notwithstanding certain appeals preferred by the parties, etc. According to the learned Advocate for the petitioner, the period of limitation will not stop to run and by virtue of Article 134 of the Limitation Act, 1963 (for short the Act), the period of limitation being one year ought to have exhausted by the respondent which he did not do and therefore the application for delivery of possession by 6-9-1984 was hopelessly barred by time. Mr. M. Ramaiah, learned Senior Advocate for the respondent while filing a detailed counter in form of memorandum of facts has tried to bring out two aspects namely that throughout there was stay by way of certain orders passed by this Court till the appeal was disposed of by this Court and therefore even assuming that the period of limitation commences on the confirmation of the sale or issue of sale certificate, such a period was to be excluded and computed by virtue of Sec. 15(4) of the Act. The learned Advocate for the respondent has relied upon several precedents to show that the date of confirmation of the sale ultimately is the fixing time and for running the period of limitation for the purpose of Article 134 of the Act, the reason being that it is the order of the highest Court in the appeal etc. which becomes executable. The precedents relied upon by the learned Advocate are:

AIR 1934 134 (Privy Council) ; Sri Ranga Nilayam Rama Krishna Rao v. Kandakori Challayamma, AIR 1953 SC 425; Kuchanpudi Simdara Rama Raju v. Govada Parandhamayya 1969 (1) An.W.R. 498; Ganpat Singh (Dead) by Lrs. Vs. Kailash Shankar and Others, and Bodinapalli Venkata Pitcheswara Rao v. Munnaluri Madhava Rao (died) per L.Rs., 1994 (2) An.W.R. 619.

After hearing the learned Advocates of both sides this Court is of the considered view that the law is settled in regard to the main controversy in the case namely that it is the order of the highest Court in appeal which fixes the running of the limitation in general and in particular for an application by the auction purchaser to seek delivery of the property so purchased in auction proceedings under Article 134 of the Act and in this case, on facts, the proceedings in relation to the confirmation of sale concluded only on 5-11-1983 and therefore the application filed for delivery of possession by the respondent-auction purchaser on 6-9-1984 which is within one year from 5-11-1983 was very much within the period of limitation. While referring to the precedents of Privy Council in AIR 1934 134 (Privy Council) and of the Supreme Court in Sri Ranga Nilayam Rama Krishna Rao''s case, AIR 1953 SC 425, this Court in B.V. Pitcheswararao''s case, 1994 (2) An.W.R. 619 has authoritatively declared the law in para-17 of the judgment as follows:

"Law is well settled now that the sale becomes absolute only after the application for setting aside the sale is finally disposed of. In Chandra Mani v. Anarjan Bibi, the Privy Council, interpreting the expression ''when the auction sale becomes absolute'' in sub-rule (1) of Rule 92 of Order 21 of the Code, held as follows:

''Upon consideration of the Sections and Orders of the Code, their Lordships are of the opinion that in construing the meaning of the words ''when the sale becomes absolute'' in Article 180 Limitation Act, regard must be had not only to the provisions of Order 21, Rule 92(1) of the Schedule to the Civil Procedure Code, but also the other material Sections and Orders of the Code, including those which relate to appeals from Orders made under Or.21, Rule 92(1). The result is that where there is an appeal from an order of the Subordinate Judge. disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art.180. Limitation Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do. when he decided to disallow the above mentioned application"

The law having been settled by the Privy Council, by the Supreme Court and by this Court authoritatively as above, not only makes the question a finality in decision but also binding on this Court. Even if the law stated in Pattern Sardar Khan case (supra), is relied upon by the learned Advocate for the petitioner, this distinguishes the law in a different situation where the sale certificate is issued on a particular date to fix limitation. It cannot be a good law to have a binding force for acceptance in dealing with the question.

Apart from the law laid as above from the stage of this Court upto the apex Court as above, this Court wishes to add something more into such a law. The finality of the proceedings in the appeal etc. in the course of the highest hierarchy for the purpose of operation or execution of a decision is evolved into the doctrine of merger; to mean that all the orders of all the Courts and authorities or the tribunals merge in the decision of the highest Court of the hierarchy to become operative as the Constitution Bench of the Supreme Court in Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., has authoritatively declared the law as follows:

"It is this principle viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower Court merges in the decree of the appellate Court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision - whether of reversal or modification or mere confirmation."

It is the order of the appellate authority which becomes operative in any manner passed by confirmation, by refusal or modification. By incorporating the rule of doctrine of merger also into such a concept of the decision of the highest Court in the hierarchy becoming operative, it must be held on the facts of this case and on correct position of law settled so far that in the present case, by virtue of Article 134 of the Act, the period of limitation of one year started only from 5-11-1983 for the respondent-auction purchaser to seek possession of the properties purchased by him in the Court auction. Merely on this question having been determined, this petition loses its merit.

Regarding the second question whether there was an order of stay during all the proceedings between the parties at several stages as above, the learned Advocate for petitioner has controverted and this Court is not in a position to verify all these facts. Secondly, by virtue of Sec. 15(4) of the Act, in relation to computation of the period of limitation, in regard to suit for possession by the purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded. Borrowing of the same principle even for application seeking possession under Article 134 of the Act, may not be out of logic or law. However, in view of separate articles having been provided for a suit and application in such a situation, it may not be proper to declare law in this regard in such a fashion.

Judging the matter in any angle, this petition should fail. C.R.P. is dismissed. No costs.