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. E