D.P.SINGH, J. - (1.) PLEADINGS are complete and the Counsel for the parties agree that the petition may finally be disposed off under the Rules of the Court. Heard Counsel for the parties.
(2.) THIS writ petition is directed against the orders dated 4-5- 1991 and 5,1.1996 whereby objection of the petitioner against the delivery of possession of the disputed house has been rejected by both the Courts below. Father of the respondent No. 3 filed a money suit No. 285 of 1959 for recovery of sum of Rs.400/-, which was decreed. An execution application was filed by him which was registered as execution case No. 186 of 1963 wherein the disputed house was sold in a Court auction on 29-3-1964 and was purchased by the decree holder himself. The sale was made absolute on 21-4-1964. After his death, the respondent No. 3 filed suit No. 225 of 1983 for permanent injunction to restrain the petitioner from interfering in the possession of the disputed house wherein the petitioner allegedly resided. The suit was dismissed vide judgment and order dated 9-2-1988. After dismissal of the suit, the respondent No. 3 filed an application dated 17-3-1988 under Order XXI Rule 94 for issuance of a sale certificate on the basis of the aforesaid auction sale dated 19-3-1964. The petitioner filed objections against the said application on several grounds including that of limitation. Both the Courts below rejected the objections of the petitioner and allowed the application of the respondent No. 3 vide orders dated 8-12-1989 and 27-3- 1990. Thereafter, the respondent No. 3 made an application under Order XXI Rule 95 for delivery of possession. The petitioner again filed his objection inter-alia stating that the application was hopelessly barred by time as the application was not made within a period of one year as prescribed under Article 134 of the Limitation Act. Both the Courts below have rejected the objection holding that limitation would run from the date of delivery of sale certificate and thus the application was within time. The Court also held that the petitioner was estopped from raising question of limitation again in proceedings under Order XXI Rule 95 since the same objection has already been rejected while disposing off his application under Order XXI Rule 94.
(3.) LEARNED Counsel for the petitioner has urged that sine quo non to the filing of an application under Order XXI Rule 95 was only that the sale should have become absolute and the limitation would not run from the date the sale certificate is issued. In support of his contention he has relied upon a decision of this Court in the case Sukh Lal v. Ghasi Ram, [AIR 1979 Allahabad 411 and a Division Bench in the case of Babu Lal v. Annapurnabai, [AIR 1953 Nagpur 215], For the proposition that in the facts of the case Article 134 and not Article 136 would apply. He has relied upon the ratio of the Apex Court in the Case of Ganpat Singh v. Kailash Shankar, [AIR 1987 SC 1443].;