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2016 Supreme(Ker) 35
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. ABRAHAM MATHEW, J.
P.V. Cherian - Petitioner
Vs.
George Babu & Ors. - Respondents
O.P.(C)No.3722 of 2013
Decided on : 20-01-2016
Advocate Appeared:
Sri. Mohan Jacob George, Smt. P.V. Parvathi, Smt. Reena Thomas
R1 & R2 Sri. S.V. Balakrishna Iyer, Sri. R. Sunil Kumar, Smt. A. Salini Lal, Sri. Binny A. Thomas
Headnote:
Civil Law - Civil Suit - Limitation Act, 1963 - Article 127 - Civil Procedure Code, 1908 - Order 21 - Rule 89 and 92( 2) - Execution of Decree - Settlement of disputes outside the Court - Whether court have a right to extend the limit of time filling application to set aside the sale order - Petition against Dismissal of application - Held, Court has no right to extend the time either for depositing the amount or filing the application to set aside the sale An application filed without complying with Rule 89 or Rule 92(2) Order 21 of Code or beyond period prescribed by Article 127 of Limitation Act is liable to be dismissed in limine - Judgment debtor cannot maintain an application under Rules 89 and 90 simultaneously - Petition allowed
The legal document discusses the procedures and limitations related to the execution of a sale in a civil court, particularly focusing on applications to set aside a sale under Order 21 Rules 89 and 92 of the Civil Procedure Code, and the relevant limitation periods under the Limitation Act.
Key points include:
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An application to set aside a sale must be filed within the prescribed period, which is 60 days from the date of sale, as per the Limitation Act (!) (!) . Any application filed beyond this period is liable to be dismissed in limine (!) .
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The deposit of the required amount (typically 5% of the purchase price) must be made within the specified period (60 days from the sale) for the application to be considered (!) (!) (!) . The court has no authority to extend this period except in cases of clerical or arithmetical mistakes, and even then, only within the same 60-day window (!) (!) .
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An application under Rule 89 is intended for setting aside the sale on deposit, and it must strictly comply with the deposit requirements and time limits. Failure to deposit the amount within the prescribed period results in the sale being confirmed and becoming absolute (!) (!) .
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A judgment debtor cannot maintain applications under Rules 89 and 90 simultaneously. If a debtor files an application under Rule 90 to attack the validity of the sale, they cannot subsequently maintain an application under Rule 89 unless they withdraw the Rule 90 application (!) (!) .
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The court's role is to record the confirmation of the sale, not to confirm it through an order. If the court fails to pass a formal order of confirmation within the time limit, it is deemed that the sale has been confirmed and has become absolute (!) .
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Strict adherence to procedural requirements is mandatory. Non-compliance with the deposit or filing deadlines results in the sale being confirmed, which is binding on the parties (!) (!) .
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The court cannot extend the time for depositing the amount or filing the application beyond the statutory period. Non-compliance by judgment debtors entitles the auction purchaser to have the sale confirmed in their favor (!) (!) .
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If the judgment debtor fully satisfies the decree before filing the application, the court may waive the deposit requirement, but this does not alter the strict time limits for filing applications (!) .
In conclusion, procedural compliance within the specified time frames is crucial for the validity of applications to set aside or contest a sale. Non-compliance results in the sale becoming absolute and confirmed, favoring the purchaser. The court's role is limited to recording confirmation and ensuring procedural adherence, and it cannot extend deadlines or relax procedural requirements.
The third respondent obtained a money decree against respondents 1 and 2 who are husband and wife. In execution of the decree the property of the first respondent was sold on 20.6.2013. It was purchased by the petitioner. On the same day he deposited 25% of the purchase money. The very next day (29.6.2013) the judgment debtors filed Ext P1 application under Order 21 Rule 89 of the Code of Civil Procedure to set aside the sale. But they did not deposit any amount along with the application. On 3.9.2013 they filed Ext P4 application to grant them two weeks time "to comply with Order 21 Rule 89". On 20.9.2013 they paid Rs.5,12,881/- to the decree holder, which received it in full satisfaction of its claim under the decree as evidenced by Ext P7 copy of the receipt. On 27.8.2013 they filed Ext P9 application for permission to deposit five percent of the purchase price. They deposited in court 5% of the purchase price apparently on 20.9.2013. On 25.9.2013 the purchaser filed Ext P6 application to confirm the sale in his favour and to dismiss Ext P1 application filed by the judgment debtors to set aside the sale. On 5.10.2013 by Ext P10 non-speaking order the court allowed Ext P9 application. By Ext P8 common order dated 11.10.2013 the court allowed Ext P1 application filed by the judgment debtors and dismissed Ext P6 application filed by the purchaser. Thus the sale was set aside. The court allowed the purchaser to withdraw the purchase money deposited by him as well as 5% of the purchase money deposited by the judgment debtors. Legality of Ext P8 and P10 orders are challenged by the auction purchaser.
2. Order 21 Rule 89 and Rule 92 of the Code of Civil Procedure and Article 127 of the Limitation Act contain the provisions relating to application to set aside sale on deposit of the purchase price and five percent of the purchase price.
Rule 89. Application to set aside sale on deposit-
(1) where immovable property has been sold in execution of a decree, (any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person) may apply to have the sale set aside on his depositing in Court-
(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money and
(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.
Rule 92. Sale when to become absolute or be set aside-
(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute.
(2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within sixty days from the date of sale on in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by this court, the court shall make an order setting aside the sale. (The rest of the provision is omitted) Under article 127 of the Limitation Act an application to set aside sale in execution of a decree including any such application by a judgment-debtor shall be filed within sixty days from the date of the sale.
3. Order 21 Rule 89 sub rule 1 mentions (a) the person entitled to
