JUDGMENT :

P.G. AJITHKUMAR, J.

1. This is an appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908.

2. In O.S. No. 379 of 1997 on the file of the II Additional Sub Court, Thrissur, a decree enabling the 1st respondent to realise a sum of Rs. 2,77,359/- was passed. In execution of that decree, immovable property belonging to the appellant was brought on sale. The property was sold for an amount of Rs. 4,25,000/-. The appellant filed E.A. No. 242 of 2009 in the execution petition, E.P. No. 278 of 2002, invoking Sections 47, 151 and Order XXI, Rules 58, 90 and 97 of the Code with a prayer to set aside the sale. The application was dismissed on 31.07.2009. Challenging the said order the appellant has filed the appeal.

3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the 4th respondent. Other respondents did not turn up.

4. The 2nd respondent availed a loan from the 1st respondent for the purchase of a minibus. The 3rd respondent is the mother of the appellant and they were the sureties. Their property was mortgaged as security for the loan. The decree passed in the suit was put in execution and the property of the appellant was proclaimed for sale. The appellant met with an accident at that time and was undergoing treatment in a hospital. Therefore, he was not able to attend the court or file any objection to the settlement of proclamation. 33 cents of property worth Rs. 50 lakhs was bid by the 4th respondent just for an amount of Rs. 4,25,000/-. Only when a notice on the cheque application was received, the appellant knew about the same. Immediately, he filed the petition, E.A. No. 242 of 2009. It is contended that there was sufficient reason for the appellant’s failure to approach the court earlier. The sale was conducted without assessing the market value of the property, and therefore, the sale is vitiated by fraud and irregularity. By such sale, the appellant was put to much loss and substantial injury. For the said reason the appellant seeks to set aside the sale.

5. The learned counsel appearing for the 4th respondent would submit that the application was one for setting aside sale under Order XXI, Rule 90 of the Code and as it was filed beyond the period of 60 days, it was time barred. The learned counsel placed reliance in this regard on Francis vs. John Britto, 2004 (3) KLT 1113 : 2004 KHC 1627 and Aarifaben Yunusbhai Patel and Others vs. Mukul Thakorebhai Amin and Others, AIR 2020 SC 2344.

6. The date of auction sale was 18.08.2008. I.A. No. 242 of 2009 was filed on 24.02.2009. The period of limitation for an application under Order XXI, Rule 90 is sixty days as per Article 127 of the Limitation Act, 1963. Since the petition was filed beyond the period of 60 days, it is time barred. The Apex Court in Aarifaben Yunusbhai Patel (supra) held that on no account provisions of Section 5 of the Limitation Act can be made applicable to an application under Order XXI, Rule 90 of the Code. This Court in Francis vs. John Britto (supra) also laid down the same principle.

7. The learned counsel appearing for the appellant submitted that sufficient documents were produced before the executing court to prove his inability to appear before the court before and after the sale. We have perused the lower court records. It is seen that no such document was produced before the executing court in order to prove the inability of the appellant for approaching the court and file the application.

8. E.A. No. 242 of 2009 was filed invoking the provisions of Sections 47 and 151 and Order XXI, Rules 58, 90 and 97 of the Code. But the averments in the affidavit constitute the grounds for setting aside the sale on the ground of fraud and irregularity in proclaiming and conducting the sale. Therefore, the application can be reckoned as one under Order XXI Rule 90 of the Code alone. When E.A. No. 242 of 2009 was filed beyond the period of 60 days and the delay cannot be condoned, even i