The court affirmed that Section 5 of the Limitation Act does not apply to applications under Order 21 Rule 90 of the CPC, emphasizing the need for timely objections in execution proceedings.

ORDER :

The instant revision petition has been filed by the judgment debtor in O.S.No.22 of 2005 on the file of the District Munsif Court, Eraniel challenging the dismissal of an application filed under Section 5 of Limitation Act read with Section 151 of C.P.C to condone the delay of 539 days in filing an application under Order 21 Rule 90 of C.P.C.

(A) Factual Matrix:

2. The first respondent in the revision petition has filed the above said suit for the relief of recovery of money based upon a pronote dated 09.01.2004. The suit was decreed exparte on 28.10.2005. The decree holder had filed E.P.No.51 of 2006 to attach and bring the property for sale. The sale was conducted on 06.08.2007. The brother of the decree holder was the sole bidder and he was declared as the successful bidder on the said date. The sale was confirmed on 23.08.2007 and a sale certificate was issued on 02.05.2008. The auction purchaser had filed E.A.No.233 of 2008 for taking delivery of the property. The judgment debtor had filed E.A.No.43 of 2009 to condone the delay in filing an application and E.A.No.44 of 2009 under Order 21 Rule 90 of C.P.C to set aside the sale on the ground of material irregularity. Both these applications came to be dismissed by way of a common order on 15.03.2021. The present revision petition has been filed challenging the order passed in E.A.No.43 of 2009. These facts are not in dispute.

3. The Executing Court had dismissed E.A.No.43 of 2009 primarily on the ground that Section 5 of Limitation Act is not maintainable in filing an application under Order 21 Rule 90 of C.P.C and the judgment debtor has not made out a case of irregularity in the conduct of sale to entertain such an application.

4. The revision petitioner has raised the following issues:

a)The judgment in O.S.No.22 of 2005 is an non-speaking one and it does not conform with Section 2(9) of C.P.C read with Order 21 Rule 4 of C.P.C. He relied upon a judgment of the Hon'ble Supreme Court reported in (2024) 1 MLJ 563 (SC) ( Asma Lateef and another Vs. Shabbir Ahmad and others ) and AIR 1999 SC 3381 ( Balraj Teneja and another Vs. Sunil Madan and another ) in support of his contention.

b)The property that is attached and sale is having an extent of 11 ¼ cents in a prime locality in Eranial, Kanniyakumari District. However, the property has been sold only for a sum of Rs.1,50,400/-. The docket order of the Courts below would show that the Court has not called for a valuation report or guideline value before fixing the price.

c) The property worth of Rs.150,400/- has been sold for releasing E.P amount of Rs.59,550/-. The Executing Court has not applied its mind to examine whether the entire property must be sold or a portion thereof which would be sufficient to satisfy the decree.

(B) Contentions of the counsels appearing on either side:

5. The learned counsel for the petitioner had relied upon the judgement of the Hon'ble Supreme Court reported in (2005) 10 SCC 235 ( S.Mariyappa Vs. Siddappa ); (2006) 2 MLJ 289 (Balakrishnan Vs.Malaiyandi Konar); (2024) 3 MLJ 433 ( Bhikchand Vs. Shamabai Dhanraj Gugale) to contend that only a portion of the property that is required to satisfy the decree should be sold in the Court auction.

6. The learned counsel had further contended that when there is non-compliance of Order 21 Rule 64, the bar under the provisions of Order 21 Rule 90(3) C.P.C cannot be invoked. He had further contended that when there is a statutory violation, the Court cannot ignore the same and confirm the sale which would perpetuate the illegality. He had further contended that the Court can exercise its suo moto power to set aside the sale even if the application to set aside the sale has not been filed within a period of 60 days as contemplated under Article 127 of the Limitation Act.

7. The learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court reported in (1995) 3 SCC 579 ( Nani Gopal Paul Vs.T.Prasad Singh and others ); (1998) 2 MLJ