GANPAT SINGH (DEAD) BY LRS. versus KAILASH SHANKAR & ORS.

GANPAT SINGH (DEAD) BY LRS. versus KAILASH SHANKAR & ORS.

Article 134 of the Limitation Act, 1963 and not Article 136, is applicable to an application by an auction purchaser under Order XXI Rule 95 CPC for delivery of possession; insertion of Explanation II to Section 47 CPC does not change this position. Such an application cannot be equated with an application for execution of a decree for possession.

Parties
Appellant: Ganpat Singh (Dead) by LRs.; Respondent: Kailash Shankar & Ors.
Jurisdiction
India
Judgment Date
08 May 1987
Procedural Posture
Civil Appeal / Appeal Under Article 136 (treated as Such; Originally on Certificate Under Article 134 A, But Treated as Slp)
Outcome
Appeal allowed. Judgments of the High Court and District Judge set aside. Settlement between parties recorded.
Legal Topics
Limitation of Execution Applications, Auction Purchaser Rights, Execution of Decrees
Civil Procedure Limitation Limitation of Execution Applications Auction Purchaser Rights Execution of Decrees

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Parties

Ganpat Singh (Dead) by LRs.

Appellant

Kailash Shankar & Ors.

Respondent

Procedural Posture

Civil Appeal / Appeal Under Article 136 (treated as Such; Originally on Certificate Under Article 134 A, But Treated as Slp)

Legal Issues

  1. 1 Whether Article 134 or Article 136 of the Limitation Act, 1963 applies to an application by an auction purchaser under Order XXI Rule 95 CPC for delivery of possession of property sold in execution of decree.
  2. 2 Whether an application for delivery of possession by an auction purchaser can be equated to an application for execution of a decree.
  3. 3 Effect of insertion of Explanation II to Section 47 CPC by the CPC (Amendment) Act 1976.

Ratio Decidendi

Article 134 of the Limitation Act, 1963 and not Article 136, is applicable to an application by an auction purchaser under Order XXI Rule 95 CPC for delivery of possession; insertion of Explanation II to Section 47 CPC does not change this position. Such an application cannot be equated with an application for execution of a decree for possession.

Court Disposition

Appeal allowed. Judgments of the High Court and District Judge set aside. Settlement between parties recorded.

Orders

  • Sale set aside pursuant to settlement; Rs. 1,28,000 deposited in Court to be paid to decree-holder in full settlement of mortgage decree.
  • Full satisfaction of the mortgage decree re: S.C. No. 10/73 recorded; decree-holder auction-purchaser to have no further claim against appellants under the mortgage or decree.