' MAULVI ANWARUL HAQ, J.--- In execution of a decree for recovery of money passed in favour of the respondent-Bank against the appellant the mortgaged land was put to sale and the said decree- holder itself purchased the land by making a highest bid. The sale was confirmed and a certificate was issued on 11-3-1996. On 22-3-2006 the respondent tiled an application under Order XXI, rule 95, C.P.C. For delivery of possession. An objection was raised on behalf of the appellant that the application is barred by time. This objection has been overruled by the learned Judge Banking Court-II on 8-11-2006.
2. Learned counsel for the appellant contends that the impugned order is illegal inasmuch as Article 180 of Limitation Act, 1908 provides a period of three years for filing of the said application from the date the sale becomes absolute and Article 138 of the said Act only applies to a suit.
3. Learned counsel for the respondent tried to support the impugned order.
4. There is no denial rather it is in the application filed by the respondent itself that sale certificate was issued on 11-3-1996. The application was filed on 22-3-2006. We do agree with the learned counsel for the appellant that the limitation is governed by Article 180 of the Limitation Act, 1908 which prescribes a period of three years for filing of an application by a .Purchaser of immovable property at a sale in execution of , decree for delivery of possession and this period commences from the date the sale becomes absolute. The date on which the sale becomes absolute is provided in Order XXI, rule 92 C.P.C. Be that as it may even if the said period is commuted from the date of issuance of sale certificate i,e, 11,3.1996 the application was bared by time. The learned Executing Court has dismissed the objection with reference to Article 138 of the said Act but it is obvious that the Article has not even been read by the learned Judge Banking Court. The said Article occurs in Part-VIII of the First Schedule, to, the Limitation Act, 1908 and deals with the suits for which the period of limitation prescribed is 12 years.. The said Article was not at all attracted to the present proceedings.
5. Before parting with this judgment we may observe that the respondent may file a properly constituted suit for possession as contemplated by the said Article 138 if the limitation prescribed by the said Article is still there. The EFA is allowed and the impugned order is set aside. The application filed under Order XXI, rule 95 C.P.C. By the respondent is dismissed. No order as to costs.