Back
HIGH COURT OF PATNA
S.N. JHA, J.
Sri Ramashray Prasad Choudhary – Petitioner
Versus
Krishna Nandan Singh – Opposite Party
Civil Revision No. 1228 of 1996
Decided On : 1.9.1997
LIMITATION ACT - ARTICLE 127 - ORDER 21 RULE 90 OF THE CODE OF CIVIL PROCEDURE - SALE CONFIRMED BEFORE EXPIRY OF LIMITATION PERIOD - PREMATURE CONFIRMATION OF SALE - RIGHT TO SET ASIDE SALE - RES JUDICATA - ORDER 21 RULE 64 OF THE CODE OF CIVIL PROCEDURE - SALE OF PROPERTY TO SATISFY DECREE - SECTION 151 OF THE CODE OF CIVIL PROCEDURE - INTERFERENCE WITH SALE - SUMMARY DISMISSAL OF APPLICATION TO SET ASIDE SALE - MAINTAINABILITY OF APPLICATION.
Fact of the Case:
Petitioner challenged the auction sale held on 11.3.1977 and confirmed on 12.4.1977, alleging that it was conducted before the expiry of the limitation period for filing an application to set aside the sale. The petitioner had filed multiple objections and applications related to the sale, which were dismissed by the executing court and in subsequent appeals. The petitioner then filed an application under Order 21, Rule 90 of the Code of Civil Procedure to set aside the sale, which was dismissed by the court on the ground of limitation.
Finding of the Court:
The court held that the sale was confirmed prematurely, before the expiry of the limitation period for filing an application to set aside the sale, which deprived the petitioner of his valuable right to challenge the sale. However, the court also found that the petitioner's application to set aside the sale was barred by limitation, as it was filed more than 60 days after the date of the sale. The court further held that the principle of res judicata applied, as the petitioner had already filed an application under Order 21, Rule 90, which was dismissed for non-prosecution, and that the provisions of Order 21, Rule 64, which require the court to sell only such property as is necessary to satisfy the decree, were not applicable in this case, as the property was sold for the exact amount of the decretal amount.
Issues: 1. Whether the premature confirmation of sale deprived the petitioner of his right to challenge the sale? 2. Whether the petitioner's application to set aside the sale was barred by limitation? 3. Whether the principle of res judicata applied to the petitioner's application? 4. Whether the provisions of Order 21, Rule 64, were applicable in this case?
Ratio Decidendi: 1. The court held that the premature confirmation of sale was a violation of the petitioner's right to challenge the sale, as it deprived him of the opportunity to file an application to set aside the sale within the prescribed limitation period. 2. The court held that the petitioner's application to set aside the sale was barred by limitation, as it was filed more than 60 days after the date of the sale, and that the provisions of section 5 of the Limitation Act precluded the court from extending the limitation period. 3. The court held that the principle of res judicata applied to the petitioner's application, as he had already filed an application under Order 21, Rule 90, which was dismissed for non-prosecution, and that the subsequent application was, in substance, an attempt to relitigate the same issue. 4. The court held that the provisions of Order 21, Rule 64, which require the court to sell only such property as is necessary to satisfy the decree, were not applicable in this case, as the property was sold for the exact amount of the decretal amount.
Final Decision: The court dismissed the petitioner's civil revision, holding that the application to set aside the sale was barred by limitation and that the principle of res judicata applied.
S.N. Jha, J.
1. This civil revision by the judgment debtor is directed against an order by which an application under Order 21, Rule 90 of the Code of Civil Procedure has been rejected.
2. The sole opposite party along with his father (since dead) filed Money Execution Case No. 5 of 1969 in the Court of Subordinate Judge, Darbhanga, for realisation of decretal amount of Rs. 15,221.30 P. The petitioner filed objection under section 47 of the Code (Misc. Case No. 10 of 1972) which was dismissed in default on 14.8.1976. He filed another objection under section 47 (Misc. Case No. 2 of 1976) which was dismissed as not maintainable on 3.12.1976. The petitioner challenged the said order, initially by way of appeal (Misc. Appeal No. 68 of 1977) which was later converted into Civil Revision No. 1498 of 1977 in this Court. The said appeal was filed on 14.3.1977. In the meantime, the impugned auction sale was held on 11.3.1977 and confirmed on 12.4.1977. The delivery of possession was also allegedly effected on 23.3.1978. This Court vide order dated 8.1.1979 in C.R. No. 1490 of 1977 stayed further proceedings in the execution case. On 13.8.1979 the civil revision was finally allowed, the Misc. Case No. 2 of 1976 was restored and the matter was remanded to the executing court for decision on merit. In the meantime on 18.4.1978 the petitioner had filed an application under section 47 read with section 151 of the Code (Misc. Case No. 3 of 1978) to set aside the sale which was dismissed for non-prosecution on 24.11.1980. On 22.12.1993 Misc. Case No. 2 of 1976 was dismissed on merits. The petitioner challenged the said order in C.R. No. 404 of 1994 in this Court which, too, was dismissed on 15.4.1994. The petitioner, thereafter, filed application under Order 21, Rule 90 of the Code to set aside the sale, which was registered as Miscellaneous Case No. 7 of 1994. The application/miscellaneous case has been dismissed by the impugned order. The court has held that the petitioner became aware of the execution case in the year 1972 when he filed Misc. Case No. 10 of 1972 and the common sense does not permit him to believe that the sale was not within his knowledge.
3. A salfen leave of the case, as would appeal from the chronology of events narrted avove is that the sale was confirrence before the expiry of period of initial on for may application to set aside the Article 127 of the Limitation Act, 1963. It may be mentioned here that the period of limitation earlier was 30 days which was enlarged to 60 days by section 98 of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), which came into force with effect from 1.2.1977. The petitioner or any other person could have, thus, filed application to set aside the sale under any of the provisions of Rules 89, 90 or 91 upto 10.5.1977 when the period of 60 days expired. However, in the present case the sale was confirmed on 32nd day. Since the sale took place after coming into force of the amended provisions there can be no doubt that it will be governed by the amended provisions. In terms of Rule 92 of Order 21 of the Code after the Court makes an order confirming the sale, it became absolute, the Court has no power, to set aside the same. A premature confirmation of sale, thus, takes away a valuable right of making application to set aside the sale, which is available to a judgment-debtor or any other person claiming interest in the property.
4. Mr. Ram Balak Mahto, learned counsel for the opposite party, submitted that in the facts of the case, the fact that the sale was confirmed before expiry of the period of limitation is of little consequence. He contended that in any view, an application to set aside the sale is to be made within a period of 60 days, reckoned from the date of the sale. The application (Misc. Case No. 7 of 1994) was, therefore, hopelessly time barred and the court below, therefore, rightly rejected the same on the ground of limitation. Mr. Mahto pointed out wit
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
