1. Application to set aside sale under Order 21 Rule 89 CPC filed after the limitation period prescribed by Article 127 of the Limitation Act. (Para 1 , 2 , 4 )
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1994 Supreme(SC) 569
SUPREME COURT OF INDIA
Kuldip Singh : Yogeshwar Dayal
Mohan Lal
Versus
Hari Prasad Yadav: Parmanand Gupta
Case No. : 2647 of 1984
Date of Decision : 5/13/94
Advocates Appeared: Divate Shankar : Gupta K.K. : Javali S.S. : Kaushik Lalita : Khanna R.K. : Pal R.P.Singh : Sinha S.K.
Important Points
Applications to set aside a sale under Order 21 Rule 89 of the CPC are governed by Article 127 of the Limitation Act. Section 5 of the Limitation Act does not apply to applications under Order 21, meaning the prescribed limitation period cannot be extended.
Subject
Civil Procedure - Execution of Decrees
Act Referred
Headnote
Civil Procedure Code - Rule 89 - Order 2 - Limitation Act, - Section 5 - Against the judgment – Circumstance evidence – Jurisdiction - Judgment-debtor has placed before me has since reconciled to his fate after exhausting all the processes, at his command and is now ready to deposit amount and he is ready to deposit another and undertakes to deposit the remaining amount within a short period - It was submitted on his behalf that irreparable loss will be caused if his prayer is not allowed - In interest of justice and in circumstance of the case Court take the liberty to order the judgment-debtor to deposit henceforth and order to deposit the remaining amount under decree latest failing which sale will be confirmed – Held, It is settled law that an application to set aside sale under Order 21 Rule 89 of Code is governed by Article 127 of Limitation Act - Section 5 of the Limitation Act has no application on its own wordings. Section 5 of Limitation Act reads as follows - Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after prescribed period if the appellant or applicant satisfies court that had sufficient cause for not preferring the appeal or making application within such period - Explanation fact that appellant or the applicant was misled by any order, practice or judgment of High court in ascertaining or computing the prescribed period may be sufficient cause within meaning of this section - Application under Order 21 Rule 89 of Code being an application under provisions of Order 21Section 5 of Limitation Act, on its own language, is not applicable specifically – Court thus left with the question whether Section 148 of the Code would be applicable to present case or not. Again Section 148 of Code would not be applicable to present case for the simple reason that the time for making an application under Rule 89 of Order 21 of Code is not fixed by the court - High court was thus right in coming to the conclusion that the executing court had no jurisdiction whatsoever to entertain the application purporting to be under Order 21 Rule 89 of the Code after the period of a limitation prescribed by Article 127 of Limitation Act - Result is that the appeal fails and is dismissed - Learned counsel for the judgment-debtor had invited us to give a finding as to extent of property which was sold as a result of court sale – Court are not inclined to go into this question in the present proceedings as it is a matter to be decided by executing court while granting the sale certificate - Petition dismissed
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Table of Contents
2. Whether an application under Order 21 Rule 89 CPC can be condoned under Section 5 of the Limitation Act or extended under Section 148 CPC. (Para 4 , 5 , 6 )
3. Section 5 of the Limitation Act excludes Order 21 CPC applications, and Section 148 CPC applies only where the court fixes the time. (Para 5 , 6 )
4. Applications under Order 21 Rule 89 CPC are governed by Article 127 of the Limitation Act and cannot be extended under Section 5. (Para 5 , 7 )
5. Appeal and special leave petition dismissed; High Court order affirming the application was time-barred upheld. (Para 8 , 11 )
6. Does Section 5 of the Limitation Act apply to applications filed under Order 21 of the Code of Civil Procedure?
No. Section 5 of the Limitation Act specifically excludes applications made under any of the provisions of Order 21 of the Code of Civil Procedure from the benefit of extension of the prescribed period. (Para 5 )
7. What is the limitation period for setting aside a sale in execution of a decree under Order 21 Rule 89 CPC?
Under Article 127 of the Limitation Act, the period of limitation to set aside a sale in execution of a decree, including an application by a judgment-debtor, is sixty days from the date of the sale. (Para 4 , 5 )
8. When is Section 148 of the Code of Civil Procedure applicable for extending time for an application?
Section 148 of the Code is applicable only in cases where the time for making an application is specifically fixed by the court, rather than by a statutory limitation period. (Para 6 )
Judgment
YOGESHWAR DAYAL, J
(1) THIS appeal is directed against the judgment of the Single Judge of the High court of Patna dated 26/4/1983 whereby the Single Judge set aside an order dated 28-5-1982 passed by the executing court in Execution Case No. 7 of 1977 while giving the benefit of Order 21 Rule 89 of the Code of Civil Procedure (hereinafter referred to as the Code) to the judgment-debtor.
(2) UNDOUBTEDLY the sale took place on 25/5/1981 and even the objections, which were filed for setting aside the sale under Order 21 Rule 90 of the Code were dismissed on 4/5/1982. An application purporting to be under Order 21 Rule 89 of the Code was filed on 28/5/1982. It may be mentioned that even an appeal has been filed against the order of the executing court dated 4/5/1982 dismissing the objections to the sale filed under Order 21 Rule 90 of the Code. After the dismissal of the objections under Order 21 Rule 90 of the Code the executing court granted time for moving the High court till 22/5/1982 and the appeal filed by the appellant against the order of the executing court dismissing objections under Order 21 Rule 90 of the Code stood dismissed on 21-12-1983. The said order is also under challenge before this court in Special Leave Petition (Civil) No. 8523 of 1985 and is being disposed of separately.
(3) AS stated above the application purporting to be under Order 21 Rule 89 of the Code for setting aside the sale was filed on 28/5/1982 which was granted by the executing court on the same date by the following order:
"28/5/1982
Order
THE judgment-debtor, has placed before me, has since reconciled to his fate after exhausting all the processes, at his command and is now ready to deposit the decretal amount and he is ready to deposit another Rs. 5,000.00 and undertakes to deposit the remaining amount within a short period. It was submitted on his behalf that irreparable loss will be caused if his prayer is not allowed.
IN the interest of justice and in the circumstance of the case I take the liberty to order the judgment-debtor to deposit henceforth Rs. 5,000.00 and order to deposit the remaining amount under decree latest by 10/6/1982 failing which the sale will be confirmed.
I also find that the auction purchaser in the circumstances would be put to loss the position being that the judgment-debtor would separately deposit another amount equivalent to the interest at the rate of 5% from the date of deposit by the auction purchaser till 10/6/1982 by way of compensation remuneration for the auction purchasers. This amount is ordered to be deposited along with the decretal amount on separate item on this amount by month of June failing which the sale in question will be confirmed.
THE judgment-debtor must comply with the order by the date fixed.
Sd/- R.C. Ram A.S.I. III"
(4) ON revision being filed by the auction purchaser against this order, the High court accepted the same and dismissed the application filed under Order 21 Rule 89 of the Code as being barred by time. The other objections of the auction purchaser, as to the maintainability of the application under Order 21 Rule 89 of the Code in view of the dismissal of the objections under Order 21 Rule 90 of the Code were not decided since the High court felt that the application under Order 21 Rule 89 was barred by time in view of the limitation provided under Article 127 of the Limitation Act, which provides as under:
Article
Description of suit
Period of
Time from
limitation
which period
begins to run
127
To set aside a sale in execution
Sixty days
The date of
of a decree including any such
the sale.
application by a judgment-
debtor.
(5) IT is settled law that an application to set aside sale under Order 21 Rule 89 of the Code is governed by Article 127 of the Limitation Act. Section 5 of the Limitation Act has no application on its own wordings. Section 5 of the Limitation Act reads as follows:
"5. Extensi
