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SUPREME COURT OF INDIA
ANIL R. DAVE, SHIVA KIRTI SINGH, JJ.
Annapurna – Appellant
Versus
Mallikarjun & Anr. – Respondents
CIVIL APPEAL NO. 4469 OF 2014 [Arising out of S.L.P.(C)No.16312 of 2010]
Decided On : 11-04-2014
(2012) 13 SCC 568; (2001) 7 SCC 71 – Relied upon
Facts of the case:
The matter relates to an Execution Proceeding in which the Executing Court put a house to auction and after rejecting the objections raised by the judgment-debtor, Respondent no.1 herein, confirmed the Court Sale by issuing Certificate of Sale in favour of the auction purchaser, the Appellant.
Against the order passed by the Executing Court dismissing his application under Order XXI Rule 89 CPC the judgment-debtor preferred an appeal before Civil Judge (Sr. Division). That appeal was dismissed with a finding that the appeal was not maintainable.
The judgment-debtor then preferred Writ Petition before the High Court to challenge the order of the Executing Court as well as of the Appellate Court.
The High Court allowed the writ petition by quashing the impugned order of the Executing Court and remitting the matter back to the Executing Court for fresh disposal of judgment-debtor’s application under Order XXI Rule 89 of the CPC.
Finding of the Court:
High Court committed a grave error of law.
Result: Appeal allowed with cost.
Certainly. Based on the provided legal document, here are the key points:
The Court emphasized that an application by a judgment debtor to set aside a court sale must include the required deposit within the prescribed time frame. Failure to make this deposit should result in the dismissal of the application (!) (!) .
The relevant provisions of the Civil Procedure Code and the Limitation Act indicate that while the Code does not specify a time limit for making the deposit, Article 127 of the Limitation Act prescribes a 60-day limitation period for filing the application. The Court clarified that the deposit must be made within this same period, as the period for the application and the deposit are considered the same (!) (!) .
The Court held that failure to deposit the requisite amount within the prescribed period renders the application not maintainable, and the executing court has no discretion but to reject such an application (!) (!) .
The High Court's decision to allow a rehearing or to remand the matter for further consideration without insisting on the deposit within the statutory period was deemed a legal error. Such an exercise undermines the statutory requirement and the settled legal principles governing execution proceedings (!) .
Consequently, the Supreme Court set aside the impugned order of the High Court, reinstated the order dismissing the application, and awarded costs to the appellant, emphasizing the importance of adhering to procedural requirements for setting aside a court sale (!) .
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JUDGMENT
SHIVA KIRTI SINGH, J.
1. Leave granted.
2. The matter relates to an Execution Proceeding in which the Executing Court put a house bearing CTS No.1610/B to auction and after rejecting the objections raised by the judgment-debtor, Respondent no.1 herein, confirmed the Court Sale by issuing Certificate of Sale in favour of the auction purchaser, the Appellant. Against the order dated 18.12.2004 passed by the Executing Court dismissing his application under Order XXI Rule 89 of the Code of Civil Procedure (CPC) the judgment-debtor preferred an appeal being Miscellaneous Appeal No.1/2005 before Civil Judge (Sr. Division). That appeal was dismissed on 26.7.2006 with a finding that the appeal was not maintainable. The judgment-debtor then preferred Writ Petition No.10550 of 2006 before High Court of Karnataka, Circuit Bench at Gulbarga to challenge the order of the Executing Court as well as of the Appellate Court. The High Court, by the order under appeal dated 18.2.2010, allowed the writ petition by quashing the impugned order of the Executing Court and remitting the matter back to the Executing Court for fresh disposal of judgment-debtor’s application under Order XXI Rule 89 of the CPC.
3. The moot question of law raised in this appeal does not require this Court to go into facts in any detail. The issue of law raised on behalf of the Appellant is whether the High Court could have ignored the settled law that under Article 127 of the Limitation Act, 1963 an application to set aside a sale under Order XXI Rule 89, CPC has to be filed within 60 days from the date of sale and same is the period for making the required deposit.
4. On facts, it is sufficient to notice that after success in O.S.No.26/1969, the decree-holder instituted execution proceedings in E.P.No.17/1993. The property in question was sold through Court Sale on 7.8.2004. The judgment-debtor filed an application under Order XXI Rule 89, CPC on 3.9.2004 to set aside the Court Sale along with an application to appoint a Court Commissioner to find out the market value of the sold property. Decree-holder filed objections and thereafter by different orders passed on 18.12.2004 the Executing Court rejected the applications of the judgment-debtor and issued Certificate of Sale in favour of the auction purchaser. On 15.1.2005, the Executing Court closed the Execution Petition as fully satisfied. Admittedly, at no point of time, the judgment-debtor made any deposit as required by XXI Rule 89, CPC before the Executing Court. As noticed earlier, judgment- debtor’s Miscellaneous Appeal was dismissed as not maintainable. In the Writ Petition preferred by him, the High Court agreed that Miscellaneous Appeal was not maintainable but primarily because the judgment-debtor, on an opportunity given by the Writ Court, had deposited Rs.25,000/- over and above the amount for which the property was sold, impugned order was passed to remit the matter back to the Executing Court for fresh disposal of the application under Order XXI Rule 89 of the CPC with liberty to the writ petitioner to place available materials before the Executing Court to show that the value of the property is more than the price obtained in the Court auction.
5. According to learned counsel for the Appellant, the High Court erred in ignoring the relevant provisions such as Rules 89 and 92 of Order XXI of the CPC and Article 127 of the Limitation Act otherwise it would have come to the only possible conclusion that in absence of required deposit being made within 60 days, the Executing Court had no option but to reject the petition under Order XXI Rule 89 of the CPC. In support of his submission, learned counsel placed reliance upon a recent judgment of this Court in the case of Ram Karan Gupta v. J.S. Exim Ltd. & Ors. (2012) 13 SCC 568 and a Constitution Bench judgment in the case of Dadi Jagannadham v. Jammlu Ramulu & Ors. (2001) 7 SCC 71 which has been referred to and relied upon in the case of Ram Karan Gupta (s
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