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Court auction sale cannot become absolute while appeal is pending

In United Finance Corporation v. M.S.M. Haneefa, instant appeal arises before the Hon'ble Supreme Court out of order passed by High Court of Kerala allowing revision and thereby dismissing application filed by Appellant under Order XXI Rule 95 of Code of Civil Procedure,1908 (CPC) on ground that, application is barred by limitation and declining direction for delivery of possession of immovable property purchased in Court auction sale to Appellant. Challenging impugned order, it was submitted that, Court auction sale does not become absolute on passing of a mere order of confirmation of sale as enjoined by Order XXI Rule 92(1) of C.P.C. but it becomes absolute only on termination of proceedings initiated to set aside the order confirming the sale.

The Hon'ble court said that "In our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, had filed two applications E.A.No.315/2001- (i) to set aside the sale alleging that the property was sold for a lower price as a result of which substantial injury was caused to him and (ii) another application in E.A. No.77/2002- an application for appointing Advocate-Commissioner to assess the value of the property. As against the order dismissing E.A.No.77/2002, the judgment-debtor has filed the revision in C.R.P.No.2829/2002. So long as the said revision was pending, the court auction sale was yet to become absolute. For the sake of arguments, assuming that the said revision was allowed, then in that case the court auction sale would have been set aside on the ground that the property was sold for a lesser price. Therefore, till the revision in C.R.P. No. 2829 of 2002 was disposed of in one way or the other, the sale was yet to become absolute. Be it noted that in Article 134 of the Limitation Act, the legislature has consciously adopted the expression “when the sale becomes absolute” and not when the sale was confirmed. As against the order dismissing E.A No.77/2002 since the revision was preferred by the judgment-debtor and the same came to be disposed of on 9th July, 2003 the sale became absolute only on 9th July, 2003. The application filed under Order XXI Rule 95 C.P.C on 30th August, 2003 was well within the period of limitation. In our view, the High Court was not right in holding that the application under Order XXI Rule 95 C.P.C was barred by limitation and the impugned order cannot be sustained."

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