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HIGH COURT OF CALCUTTA
P. B. Mukharji
SRI MADAN MOHON JEW - Appellant
Versus
BEJOYABATI DASSI - Respondent
Original Suit 80 Of 1953
Decided On : AUGUST 07, 1953
LIMITATION ACT - SECTION 14(2) - SALE IN EXECUTION - SETTING ASIDE - APPLICATION - TIME-BARRED - EXCLUSION OF TIME - DEFECT OF JURISDICTION - MATERIAL IRREGULARITY OR FRAUD - ORDER 21, RULES 89 AND 90, CIVIL PROCEDURE CODE - INTERPRETATION.
Fact of the Case:
The applicant, Mono Durlav Das, filed an application to set aside a sale in execution held on 11th March 1953. The application was made on 15th May 1953, beyond the limitation period of 30 days prescribed under Article 166 of the Limitation Act. The applicant sought to rely on Section 14(2) of the Limitation Act to exclude the time spent in prosecuting a previous application under Order 21, Rule 89 of the Civil Procedure Code, which was dismissed on 14th May 1953.
Finding of the Court:
The court held that the applicant's application was barred by limitation. The court found that the previous application under Order 21, Rule 89 was not dismissed due to any defect of jurisdiction or other cause of a like nature within the meaning of Section 14(2) of the Limitation Act. The court also observed that the provisions of Order 21, Rules 89 and 90 of the Civil Procedure Code are complementary and not exclusive, and that an application under Rule 89 need not be dismissed 'in limine' if the applicant does not withdraw his application under Rule 90.
Issues: 1. Whether the applicant's application to set aside the sale was barred by limitation? 2. Whether the time spent in prosecuting the previous application under Order 21, Rule 89 could be excluded under Section 14(2) of the Limitation Act? 3. Whether the provisions of Order 21, Rules 89 and 90 of the Civil Procedure Code are complementary or exclusive?
Ratio Decidendi: 1. The court held that the applicant's application was barred by limitation as it was filed beyond the 30-day limitation period prescribed under Article 166 of the Limitation Act. 2. The court held that the previous application under Order 21, Rule 89 was not dismissed due to any defect of jurisdiction or other cause of a like nature within the meaning of Section 14(2) of the Limitation Act. The court reasoned that the dismissal was due to the applicant's failure to deposit the required amount as per Rule 89, which is not a defect of jurisdiction. 3. The court observed that the provisions of Order 21, Rules 89 and 90 of the Civil Procedure Code are complementary and not exclusive. The court noted that Rule 89(2) provides that an applicant cannot make or prosecute an application under Rule 89 if they have an application pending under Rule 90, but this does not mean that an application under Rule 89 must be dismissed 'in limine' if the applicant does not withdraw their application under Rule 90.
Final Decision: The court dismissed the applicant's application to set aside the sale as it was barred by limitation.
( 1 ) THIS is an application to set aside a sale in execution. The application is made by the 5th defendant Mono Durlav Das who describes himself as the Managing Shebait of the Estate of Sri Sri Madan Mohan Jew under a Will dated 1st August, 1914 executed by his father Menick Lal Das deceased. It relates to the sale of property No. 29, Blackburn Lane, Calcutta. The sale was held on the 11th March, 1953. Although the Municipal valuation of the property was Rs. 7,760/- as shown in the Exchange Gazette, it was sold for the sum of Rs. 225/- only. My sympathies, therefore, are naturally with the applicant.
( 2 ) THE main difficulty, however, on his way is the bar of limitation. I have already said that the sale was held on the llth March, 1953. This application was made on the 15th May, 1953. The limitation for an application to set aside a sale in execution under the Civil Procedure Code is 30 days from the date of sale under Article 166 of the Limitation Act. This application, therefore, is obviously time-barred.
( 3 ) LEARNED Counsel for the applicant, however, argues that the applicant should receive the benefit of Section 14 (2) of the Limitation Act. The section begins with a marginal note"exclusion of time of proceeding 'bona fide' in Court without jurisdiction. " In Sub-section (2) of Section 14 it is provided: "in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of Appeal, against the defendant, snail be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. "counsel for the applicant proposes to take advantage of this section on the basis of the following facts which must here be recounted at this stage.
( 4 ) THERE was a previous application to set aside this sale on the 2nd of April, 1953. That application was under Order 21, Rule 89 of the Civil Procedure Code. The frame of that previous petition did not suggest any irregularity or fraud although some such case was intended to be made in the affidavit-in-reply in those proceedings. In substance that petition itself was an application under Order 21, Rule 89. In fact, in that application of the 2nd April, 1953, the same petitioner asked for extension of time to deposit the money required under Rule 89. He obtained my leave on the 16th April, 1953 to deposit the amount of claim and costs of the decree-holder Ganga Prosad Gupta at whose instance the property had been sold; but such leave was expressly granted "without prejudice to the rights and contentions of the parties. " The actual deposit was not made until the 21st April, 1953. That application for setting aside the sale under Order 21, Rule 89 was dismissed by me on the 14th May, 1953. That order was without prejudice to other rights and contentions of the parties. The present application was made the following day, that is, the 15th May 1953.
( 5 ) NOW this present application is one under Order 21, Rule 90 of the Civil Procedure Code, and made by the same petitioner.
( 6 ) WHAT is, therefore, said by the learned Counsel for the applicant is that the whole period from the 2nd of April 1953 till the 14th May 1953 during which the application under Order 21, Rule 89 to set aside the sale was pending, should be excluded, in determining the limitation for this present application. If that is done, then it is claimed that he is within time. I am not disposed to accept that argument that even then he is within time because between the 16th and 21st April there are five or six days in which he could have made this application but did not do so, and nothing is shown before me why that delay was made. This application should therefore fail on that ground alone.
( 7 ) BUT I will assume for the purposes of argument ev
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