Allowed

Branch Manager, Federal Bank Ltd. v. K.S.Firos

Kerala HC14 Nov 2012CRP/442/2011

Case brief

AI extract

What is this about?

The High Court held that the limitation period for delivery of possession by a purchaser at an execution sale starts from the date of confirmation of the sale, not the auction date. Consequently, the dismissal of the execution application filed within one year of confirmation was erroneous and set aside, with a direction for settlement attempts.

What did the court decide?

The impugned order dismissing E.A. No. 148/2005 is set aside and the execution application for delivery is allowed.

Branch Manager, Federal Bank Ltd. Vs K.S.Firos — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934

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CRP.No. 442 of 2011 ( )

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EA NO. 148/2005 IN OS.203/2000 of SUB COURT, CHERTHALA

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REVISION PETITIONER(S)/PETITIONER/DECREE HOLDER:

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BRANCH MANAGER, FEDERAL BANK LTD., HEAD OFFICE, ALUVA, KALARKODU BRANCH.

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BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER SMT.M.SINDHU THANKAM

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RESPONDENT(S)/COUNTER PETITIONER:

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K.S.FIROS,S/O.SADANANDAN, DEEPALAYAM, KURUPPANKULANGARA PO, 688 524, CHERTHALA.

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BY ADV. SRI.T.K.VIPINDAS BY ADV. SRI.K.V.SREE VINAYAKAN

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. CHITAMBARESH, J

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C.R.P. NO. 442 OF 2011

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Dated this the 14^th day of November, 2012

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ORDER

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The property of the respondent was brought to sale in execution of a decree for realisation of money and the petitioner who is the decree holder bid it in auction. The execution sale though took place on 02.04.2004 was confirmed on 20.07.2004 and the sale certificate issued on 11.10.2004.

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The petitioner filed E.A. No. 148/2005 under Order XXI Rule 95 of the Code of Civil Procedure on 01.07.2005 for delivery. The execution application was however dismissed by the order impugned on the premise that the application for delivery was filed one year after the date of sale. This order is challenged by the petitioner in this Civil Revision Petition under Section 115 of the Code of Civil Procedure.

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The period of limitation for applying for delivery of possession by purchaser of immovable property at a sale in execution of a decree is one year when the sale becomes absolute (see Article 134 of the Limitation Act, 1963). The

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CRP No. 442/2011

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sale shall become absolute only on its confirmation and therefore the period of limitation would start from the date of confirmation of sale only. The sale in the instant case was confirmed on 20.07.2004 and the execution application for delivery was filed within one year therefrom on 01.07.2005 itself. The court below erred in dismissing E.A. No. 148/2005 for delivery put in by the petitioner unmindful of the statutory provisions aforequoted.

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The following decisions also lend support to my

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conclusion:

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(i) Balakrishnan Vs. Malaiyandi

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Konar [2006 (1) KLT 926 (SC)]

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(ii) Haneefa Vs. United Finance

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Corporation [2006 (1) KLT 416].

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The impugned order therefore set aside and E.A. No. 148/2005 in E.P. No. 64/2002 on the file of the court of the Subordinate Judge of Cherthala is allowed.

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The respondent who is the judgment debtor contends that he is eager and willing to pay off the decree debt since the property bid in auction by the petitioner is his residential home.

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CRP No. 442/2011

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The petitioner is not averse to a compromise since it is only interested in realising the money due under the loan account and not in dispossessing the respondent from his dwelling house. I direct the court below to make an earnest attempt for settlement and if necessary refer the parties to mediation before directing

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delivery of the decree schedule property to the petitioner.

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The Civil Revision Petition is disposed of. No costs.

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V. CHITAMBARESH JUDGE

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ncd

Branch Manager, Federal Bank Ltd. v. K.S.Firos

Case brief

What is this about?

What did the court decide?

Branch Manager, Federal Bank Ltd. v. K.S.Firos

Case brief

What is this about?

What did the court decide?

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