REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023

(Arising out of Special Leave Petition (C) No.3714 of 2018)

Bhasker & Anr. …Appellants

versus

Ayodhya Jewellers ...Respondent

J U D G M E N T

ABHAY S. OKA, J.

1. Leave granted.

FACTUAL ASPECTS

2. The issue which arises for consideration in this appeal

is what is the starting point of limitation for filing an
application under Rule 95 of Order XXI of the Code of Civil
Signature Not Verified

Digitally signed by
Indu Marwah
Procedure, 1908 (for short, ‘CPC’).
Date: 2023.05.10
18:50:33 IST
Reason:

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 3. The property subject matter of this appeal held by the
appellants was sold in execution of a decree passed against
the appellants in a public auction. The respondent is the
purchaser of the property. The order of confirmation of sale
in accordance with sub­rule (1) of Rule 92 of Order XXI of
CPC was passed on 16th July 2009. The sale certificate
under Rule 94 of Order XXI of CPC was issued by the
Executing Court to the respondent on 5 th February 2010.
On 27th July 2010, the respondent filed an application
under Rule 95 of Order XXI of CPC before the Executing
Court. The said application was allowed by the Executing
Court. The appellants applied for a review of the said order.
The prayer for review was dismissed by the Executing
Court. The appellants challenged the orders of the
Executing Court by filing a Civil Revision Application before
the High Court of Judicature at Kerala. By the judgment
dated 11th April 2017, which is impugned in this appeal, the
High Court dismissed the revision application by holding
that the starting point of limitation for making an
application under Rule 95 of Order XXI was the date on
which the sale certificate was issued by the Executing
Court. The High Court relied upon the decision of this

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 Court in the case of 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 our attention to Article 134 of the Schedule to the
Limitation Act, 1963 (for short, ‘the Limitation Act’). He
pointed out that Article 134 is specifically applicable 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 sale becomes absolute. He submitted that in this
case, the sale was confirmed on 16 th July 2009, and the
application was moved by the respondent after more than
one year i.e. on 27th July 2010. He relied upon a decision of
this Court in the case of Pattam Khader Khan v. Pattam
Sardar Khan & Anr2. He submitted that this Court has
clearly held that the starting point of limitation for filing an
application under Rule 95 of Order XXI of CPC is the date
on which the auction sale is made absolute in accordance
with sub­rule (1) of Rule 92 of Order XXI of CPC. He
submitted that the High Court committed an error by
1 (2017) 3 SCC 123
2 (1996) 5 SCC 48

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 relying upon the decision in the case of United Finance
Corporation1. In the said case, a revision application
against the order rejecting the application for setting aside
the sale was filed before the High Court in which, further
proceedings were stayed. While computing the limitation,
the period of stay was excluded and that is how this Court
held that the application made in the said case was within
limitation.

5. The submission of the learned counsel appearing for

the respondent in support of the impugned order is that the
application made by the respondent will be governed by
residuary Article 137 of the Limitation Act, which provides
for a period of limitation of three years. He would,
therefore, submit that in any case, the decision of this
Court in the case of United Finance Corporation1 has
been rightly applied by the High Court.

OUR VIEW

6. We have carefully considered the submissions. It is

necessary to reproduce Rules 92, 94 and 95 of Order XXI of
CPC, which read thus:
“92. Sale when to become absolute or be
set aside.­

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

Provided that, where any property is sold

in execution of decree pending the final
disposal of any claim to, or any objection
to the attachment of, such property, the
Court shall not confirm such sale until
the final disposal of such claim or
objection.

(2) Where such application is made and

allowed, and where, in the case of an
application under rule 89, the deposit
required by that rule is made within sixty
days from the date of sale, or in cases
where the amount deposited under rule 89
is found to be deficient owing to any
clerical or arithmetical mistake on the part
of the depositor and such deficiency has
been made good within such time as may
be fixed by the court, the Court shall make
an order setting aside the sale: Provided
that no order shall be made unless notice
of the application has been given to all
persons affected thereby:
Provided further that the deposit under
this sub­rule may be made within sixty
days in all such cases where the period
of thirty days, within which the deposit

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 had to be made, has not expired before
the commencement of the Code of Civil
Procedure (Amendment) Act, 2002.

(3) No suit to set aside an order made

under this rule shall be brought by any
person against whom such order is made.

(4) Where a third party challenges the

judgment­debtor’s title by filing a suit
against the auction­purchaser, the decree­
holder and the judgment­debtor shall be
necessary parties to the suit.

(5) If the suit referred to in sub­rule (4) is

decreed, the Court shall direct the decree
holder to refund the money to the auction­
purchaser, and where such an order is
passed the execution proceeding in which
the sale had been held shall, unless the
Court otherwise directs, be revived at the
stage at which the sale was ordered.”

……………………

“94. Certificate to purchaser.­ Where a

sale of immoveable property has become
absolute, the Court shall grant a
certificate specifying the property sold
and the name of the person who at the
time of sale is declared to be the
purchaser. Such certificate shall bear date
the day on which the sale became
absolute.

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 95. Delivery of property in occupancy of
judgment debtor.­ Where the immoveable
property sold is in the occupancy of the
judgment­debtor or of some person on his
behalf or of some person claiming under a
title created by the judgment debtor
subsequently to the attachment of such
property and a certificate in respect
thereof has been granted under rule 94,
the Court shall, on the application of the
purchaser, order delivery to be made by
putting such purchaser or any person whom
he may appoint to receive delivery on his
behalf in possession of the property, and, if
need be, by removing any person who
refuses to vacate the same.”
(emphasis added)

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

which reads thus:
Description
of Period of Time from
Application Limitation which period
begins to run
For delivery of One Year When the sale
possession by a becomes
purchaser of absolute
134. immovable
property at a
sale in execution
of a decree.

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 8. Article 134 provides that the starting point of
limitation for making an application under Rule 95 of Order
XXI is the date on which the sale is confirmed. Under Rule
92 of Order XXI, the Executing Court is required to pass an
order making an order of confirmation of sale. Upon
passing the said order, the sale becomes absolute. Rule 94
of Order XXI requires a sale certificate to be issued to the
purchaser. However, the date of the certificate shall be the
date on which the sale became 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 the judgment­debtor or of some person on his
behalf or of some person claiming under title
created by the judgment­debtor, subsequent to the
attachment of the property; and

ii. A certificate in respect of the sale has been granted

under Rule 94 of Order XXI of CPC.

Only if both conditions are fulfilled, the Executing Court, on

the application of the purchaser, is empowered to pass an
order of delivery of possession of putting the purchaser in

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 possession of the auctioned property. Thus, on the one
hand, Rule 95 of Order XXI mandates that an application
for possession of the auctioned property can be made by the
auction­purchaser only after a sale certificate in accordance
with Rule 94 of Order XXI is issued. But on the other hand,
the starting point for making an application under Rule 95
of Order XXI, in accordance with Article 134 of the
Limitation Act, is the date on which the sale is made
absolute in accordance with Rule 92 of Order XXI. It is the
obligation of the Executing Court to issue the sale
certificate as per Rule 94 of Order XXI of CPC. In practice,
we often notice a substantial delay in issuing the sale
certificate. In this case, the delay is of more than six
months. In many cases, there is a procedural delay in
issuing the sale certificate for which no fault can be
attributed to the auction purchaser.

9. Paragraphs 11 and 12 of the decision of this Court in

the case of Pattam Khader Khan2 read thus:
“11. Order 21 Rule 95 providing for the
procedure for delivery of property in
occupation of the judgment­debtor etc.,
requires an application being made by the
purchaser for delivery of possession of
property in respect of which a certificate has
been granted under Rule 94 of Order 21.

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 There is nothing in Rule 95 to make it
incumbent for the purchaser to file the
certificate along 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 be failure to
issue the certificate or delay of action on
behalf of the court or the inaction of the
purchaser in completing the legal
requirements and formalities, are factors
which have no bearing on the limitation
prescribed for the application under
Article 134. The purchaser cannot seek to
extend the limitation on the ground that the
certificate has not been issued. It is true
though that order for delivery of
possession cannot be passed unless sale
certificate stands issued. It is manifest
therefore that the issue of a sale
certificate is not “sine qua non” of the
application, since both these matters are
with the same court. The starting point of
limitation for the application being the
date when the sale becomes absolute i.e.
the date on which title passed, the
evidence of title, in the form of sale
certificate, due from the court, could
always be supplied later to the court to
satisfy the requirements of Order 21 Rule
95. See in this regard Babulal Nathoolal
v. Annapurnabai [AIR 1953 Nag 215 : ILR
1953 Nag 557] , which is a pointer. It

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 therefore becomes clear that the title of the
court auction­purchaser becomes complete
on the confirmation of the sale under Order
21 Rule 92, and by virtue of the thrust of
Section 65 CPC, the property vests in the
purchaser from the date of sale; the
certificate of sale, by itself, not creating any
title but merely evidence thereof. The sale
certificate rather is a formal
acknowledgement of a fact already
accomplished, stating as to what stood sold.
Such act of the court is pristinely a
ministerial one and not judicial. It is in the
nature of a formalisation of the obvious.

12. Such being the state of law on the

subject, we fail to see how the High Court
could have come to the conclusion that even
though the sale becomes absolute on
confirmation under Order 21 Rule 92 CPC
effectively passing title, the same can only be
complete when evidenced by a sale certificate
issued under Order 21 Rule 94, and that
unless the sale certificate is issued,
limitation cannot start for the purpose of an
application under Order 21 Rule 95 CPC, vis­
à­vis, Article 134 of the Limitation Act, 1963.
The High Court, in our view erred in
holding that it is only from the date when
a sale certificate is issued, that the
limitation starts running. Such view of the
High Court would not only cause violence to
the clear provisions of Article 134 of the
Limitation Act but have the effect of
unsettling the law already settled.”

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 (emphasis added)

10. Paragraph 11 takes the view that there is nothing in

Rule 95 of Order XXI which makes it incumbent for the
purchaser to file a sale certificate along with the
application. However, on a plain reading of Rule 95 of
Order XXI, unless a certificate of sale is granted under Rule
94 of Order XXI, the auction­purchaser does not get a right
to apply for delivery of possession by invoking Rule 95 of
Order XXI. Therefore, the view expressed in paragraph 11,
prima facie, may not be correct. The said view is not
supported by the plain language of Rule 95 of Order XXI of
CPC.

11. At this stage, we may note here the decision of this

Court in the case of United Finance Corporation1. In
paragraph 11, the Bench expressed doubt about the
correctness of what is held in paragraph 11 of Pattam
Khader Khan’s case2. Paragraph 11 of the decision in the
case of United Finance Corporation1 reads thus:

“11. By careful reading of Order 21 Rule 95

CPC, the language of the provision is indicative
that application for delivery of possession of
property purchased in the court auction can be
filed where “a certificate in respect thereof has
been granted under Rule 94 of Order 21”.

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 Having regard to the language of Order 21 Rule
95 CPC “a certificate in respect thereof has
been granted in Rule 94, the court shall, on the
application of the purchaser, order delivery to
be made…” we have our own doubts
regarding the view taken by this Court
in Pattam Khader Khan case [Pattam
Khader Khan v. Pattam Sardar Khan, (1996)
5 SCC 48] that “…there is nothing in Rule
95 to make it incumbent for the purchaser
to file the certificate along with the
application” and “… that the issuance of
sale certificate is not a sine qua non of the
application …”. However, in the facts and
circumstances of the present case, we are
not inclined to refer the question to a larger
Bench — whether issuance of sale
certificate is a sine qua non or not for filing
the application under Order 21 Rule 95CPC
and the question is left open.”
(emphasis added)

However, considering the facts of the case before it, this

Court observed that it was not inclined to refer the question
to a larger Bench. Therefore, a Co­ordinate Bench has
already expressed a prima facie view that what is held in
paragraph 11 of Pattam Khader Khan’s case2, may
require reconsideration by a larger Bench.

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 12. We have already noted the twin conditions which
should be fulfilled as a condition precedent for enabling the
Executing Court to pass an order of delivery of possession
in favour of the auction­purchaser. One of the two
conditions is that the auction­purchaser who applies under
Rule 95 of Order XXI of CPC for delivery of possession,
must possess a sale certificate issued under Rule 94 of
Order XXI of CPC. Once there is a confirmation of an
auction sale in accordance with sub­rule (1) of Rule 92 of
Order XXI of CPC, the Executing Court, in the absence of
the prohibitory order of a superior Court, is under an
obligation to issue a sale certificate to the auction­
purchaser in accordance with Rule 94 of Order XXI of CPC.
However, the law does not provide for a specific time limit
within which, a certificate under Rule 94 of Order XXI of
CPC should be issued. In a given case, there can be a long
procedural delay in issuing the sale certificate for which the
auction purchaser cannot be blamed. In the present case,
the delay is of more than six months. With greatest respect
to the decision of this Court in the case of Pattam Khader
Khan2, prima facie, we are unable to agree with the view
that an application under Rule 95 of Order XXI can be
made even before the certificate of sale is granted to the

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 auction­purchaser in accordance with Rule 94 of Order XXI
of CPC.

13. Therefore, in our prima facie view, the order of

confirmation of sale under sub­rule (1) of Rule 92 of Order
XXI of CPC does not give a cause of action to the auction­
purchaser to apply for possession by invoking Rule 95 of
Order XXI of CPC. He cannot make such an application
unless the Executing Court issues a sale certificate.
Though CPC does not permit an application under Rule 95
of Order XXI to be filed before the sale certificate is issued,
Article 134 of the Limitation Act proceeds on the footing
that cause of action becomes available to the auction­
purchaser to apply for possession on the basis of the order
of confirmation of sale made under sub­rule (1) of Rule 92
of Order XXI of CPC.

14. Therefore, there is an apparent inconsistency between

the provisions of Rule 95 of Order XXI of CPC and Article
134 of the Limitation Act. The question is whether the rule
of purposive interpretation can be used to set right the
inconsistency or anomaly. We may note here that even if
the delay is on the part of the Executing Court in the issue
of the sale certificate, the delay in filing an application
under Rule 95 of Order XXI cannot be condoned as Section

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 5 of the Limitation Act is not applicable to the applications
filed under Order XXI.

15. In paragraphs 20 and 21 of the decision of this Court

in the case of AFCONS Infrastructure Limited and Anr.
v. Cherian Varkey Construction Company Private
Limited and Ors.3, the issue of purposive interpretation
has been discussed in detail. The said two paragraphs read
thus:
“20. The principles of statutory
interpretation are well settled. Where the
words of the statute are clear and
unambiguous, the provision should be given
its plain and normal meaning, without
adding or rejecting any words. Departure
from the literal rule, by making structural
changes or substituting words in a clear
statutory provision, under the guise of
interpretation will pose a great risk as the
changes may not be what the legislature
intended or desired. Legislative wisdom
cannot be replaced by the Judge's views. As
observed by this Court in a somewhat
different context:

“6. … When a procedure is prescribed by

the legislature, it is not for the court to
substitute a different one according to its
notion of justice. When the legislature

3 (2010) 8 SCC 24

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 has spoken, the judges cannot afford to
be wiser.”

(See Shri Mandir Sita Ramji v. Lt.

Governor of Delhi [(1975) 4 SCC 298] ,
SCC p. 301, para 6.)

21. There is however an exception to this

general rule. Where the words used in the
statutory provision are vague and
ambiguous or where the plain and normal
meaning of its words or grammatical
construction thereof would lead to
confusion, absurdity, repugnancy with
other provisions, the courts may, instead
of adopting the plain and grammatical
construction, use the interpretative tools
to set right the situation, by adding or
omitting or substituting the words in the
statute. When faced with an apparently
defective provision in a statute, courts prefer
to assume that the draftsman had committed
a mistake rather than concluding that the
legislature has deliberately introduced an
absurd or irrational statutory provision.
Departure from the literal rule of plain and
straight reading can however be only in
exceptional cases, where the anomalies make
the literal compliance with a provision
impossible, or absurd or so impractical as to
defeat the very object of the provision. We
may also mention purposive interpretation to
avoid absurdity and irrationality is more
readily and easily employed in relation to

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 procedural provisions than with reference to
substantive provisions.”
(emphasis added)

16. As a normal rule, while interpreting the statute, the

Court will not add words or omit words or substitute words.
However, there is a well­recognized exception to this rule
which is found in a decision of the House of Lords in the
case of Inco Europe Limited & Ors. v. First Choice
Distribution (A Firm) & Ors.4, wherein the Court held
thus:
“The court must be able to correct
obvious drafting errors. In suitable cases,
in discharging its interpretative function
the court will add words, or omit words or
substitute words. Some notable instances
are given in Professor Sir Rupert Cross’s
admirable opuscule, Statutory
Interpretation, 3 ed.(1995), pp.93­105. He
rd

comments at p.103:

“In omitting or inserting words the judge

is not really engaged in a hypothetical
reconstruction of the intentions of the
drafter or the legislature, but is simply
making as much sense as he can of the
text of the statutory provision read in its
appropriate context and within the limits
of the judicial role.”

4 (2000) 2 ALL ER 109

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 This power is confined to plain cases of
drafting mistakes. The courts are ever
mindful that their constitutional role in this
field is interpretative. They must abstain
from any course which might have the
appearance of judicial legislation. A statute is
expressed in language approved and enacted
by the legislature. So, the courts exercise
considerable caution before adding or
omitting or substituting words. Before
interpreting a statute in this way the
court must be abundantly sure of three
matters: (1) the intended purpose of the
statute or provision in question; (2) that
by inadvertence the draftsman and
Parliament failed to give effect to that
purpose in the provision in question; and
(3) the substance of the provision
Parliament would have made, although
not necessarily the precise words
Parliament would have used, had the error
in the Bill been noticed. The third of
these conditions is of crucial importance.
Otherwise any attempt to determine the
meaning of the enactment would cross the
boundary between construction and
legislation.”
(emphasis added)

17. The principle laid down in the said decision was

reiterated by this Court in the case of Surjit Singh Kalra

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 v. Union of India & Anr5. In paragraph 19, this Court
held thus:
“19. True it is not permissible to read words
in a statute which are not there, but “where
the alternative lies between either supplying
by implication words which appear to have
been accidentally omitted, or adopting a
construction which deprives certain existing
words of all meaning, it is permissible to
supply the words” (Craies Statute Law, 7th
edn., p. 109). Similar are the observations
in Hameedia Hardware Stores v. B. Mohan
Lal Sowcar [(1988) 2 SCC 513, 524­25]
where it was observed that the court
construing a provision should not easily read
into it words which have not been expressly
enacted but having regard to the context in
which a provision appears and the object of
the statute in which the said provision is
enacted the court should construe it in a
harmonious way to make it meaningful. An
attempt must always be made so to reconcile
the relevant provisions as to advance the
remedy intended by the statute. (See: Sirajul
Haq Khan 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 sub­rule (1) of Rule 92 and
Rule 94 of Order XXI of CPC, it is apparent that the order of

5 (1991) 2 SCC 87

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 confirmation of sale under sub­rule (1) of Rule 92 of Order
XXI culminates into a grant of a sale certificate under Rule
94 of Order XXI. The date of sale to be incorporated in the
sale certificate is the date of passing of the order of sale
confirmation. The very fact that Rule 94 of Order XXI
incorporates a requirement of issuing a sale certificate
shows that the Legislature was of the view that mere order
of confirmation of auction may not be sufficient. The
certificate is ultimately the evidence of the fact that the
auction in favour of the person to whom a certificate is
issued, has been confirmed by the Executing Court.

19. Prima facie, it appears to us that the only way of

avoiding inconsistency between Rule 95 of Order XXI of
CPC and Article 134 of the Limitation Act is to read into
Article 134 that the starting point for making an application
under Rule 95 of Order XXI of CPC is the date on which a
certificate recording confirmation of auction sale is actually
issued to the purchaser. Such interpretation will satisfy the
three tests laid down in the case of Inco Europe Limited &
Ors.4 Therefore, in our considered view, the decision of the
Co­ordinate Bench in the case of Pattam Khader Khan2
and especially, what is held in paragraph 11, requires
reconsideration by the larger Bench. In our considered

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 view, the larger Bench will have to decide the issue relating
to the starting point of limitation for making an application
under Rule 95 of Order XXI of CPC. We direct the Registrar
(J­I) to place this appeal along with a copy of this order
before the Hon’ble Chief Justice of India to enable him to
take appropriate decision on the administrative side.

.…..….……………J.
(Abhay S. Oka)

.…...………………J.
(Rajesh Bindal)
New Delhi;
May 10, 2023.

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