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2021 Supreme(Online)(KER) 36060
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
ANNIE THOMAS – Appellant
Versus
BABY – Respondent
FAO/170/2019
SRI.G.SREEKUMAR (CHELUR) SRI.K.R.ARUN KRISHNAN SMT.DEEPA K.RADHAKRISHNAN SRI.ARUN SAMUEL
The court clarified how limitation periods should be computed, particularly in relation to public holidays, under the Limitation Act.
Headnote:
Limitation - Execution of Decree - Limitation Act, 1963 (Sections 12, 4) - Court ruled on computation of limitation periods for setting aside auction sales, emphasizing the exclusion of the first day and the relevance of public holidays.
Fact of the Case:
The appellant, a judgment debtor, sought to set aside an auction sale of his property on grounds of fraud and irregularity. The executing court dismissed his application as time-barred under limitation law.
Finding of the Court:
The court confirmed that the application filed on the next day after a holiday was not time-barred, applying provisions of the Limitation Act regarding the computation of time.
Issues: Whether the application to set aside the sale was barred by limitation and if the filing on a holiday affected this.
Ratio Decidendi: The period of limitation should exclude the first day and include the last day. In this case, the application was timely as it was filed after a public holiday.
Final Decision: The appeal was dismissed as the application to set aside the auction sale was time-barred.
JUDGMENT
Ajithkumar, J.
This is an appeal under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908 .
2. The appellant is the judgment debtor in O.S.No.782 of
2012 of the Principal Sub Court, Irinjalakuda. It was a decree allowing realisation of money paid towards advance sale consideration. The respondent-decree holder filed E.P.No. 155 of 2016 for execution of the decree. The property belonging to the appellant was brought on sale in the auction held on 23.05.2017.
The property was bid by the respondent-decree holder.
3. On 24.07.2017, the appellant filed E.A.No.542 of
2017 seeking to set aside the sale on the ground that there occurred fraud and material irregularity in the publishing and conduct of sale. The appellant contended that the property would worth Rs.40 lakhs, but it was sold for a meager sum of Rs.5,00,100/-. It was also alleged that the auction was conducted in a clandestine manner and without making a proclamation by beat of drums.
4. The respondent-decree holder resisted the said application by filing an objection.
5. On 01.11.2019 the appeal was admitted ordering urgent notice to the respondent. The delivery of the property on the basis of the sale impugned in this appeal was stayed for two months. Interim stay was extended from time to time and is still in force.
6. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent.
7. The executing court dismissed the application on two grounds; (i) the application for setting aside the sale was barred by the law of limitation; and (ii) there was no fraud or irregularity in the publishing or conduct of sale of the property.
8. The learned counsel appearing for the appellant submitted that having the last day of the period of limitation, happened to be a holiday, the application filed on the very next day, was well within the period of limitation.
9. The auction sale was conducted on 23.05.2017.
Application to set aside the sale, E.A.No.542 of 2017 was filed on 24.07.2017. Article 127 of the Limitation Act, 1963 prescribes a period of 60 days for filing an application to set aside a sale in execution of a decree. The period of limitation would begin to run from the date of the sale as is provided in the third column in the schedule to the Limitation Act.
10. Section 12 (1) of the Limitation Act reads that 'in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded'. Since the day from which the period starts to run needs to be excluded, the period of limitation in this case has to be computed from 24.05.2017. Therefore, in May there were 8 days. Adding 30 days in June and 22 days in July, the last date for filing the application for setting aside sale, under Order XXI, Rule 90 of the Code was 22.07.2017.
11. The question is whether the application should be filed on the last day of the period of limitation to avoid the bar. If, on the other hand, it is enough to file on the next day only, the application needs to have been filed on 23.07.2017.
The said day happened to be a public holiday, being a Sunday. In view of the provisions of Section 4 of the Limitation Act, where a prescribed period expires on a day when the court is closed, it is enough if the application is filed on the day when the court reopens. Therefore, the application filed on
24.07.2017, would not be time barred.
12. The purpose behind enacting the law of limitation was to prescribe time limit for availing legal remedy for the grievance caused. The idea is that the legal remedy must be kept alive for a period fixed by the legislature-Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another [(2010) 5 SCC 459]. The law of limitation thereby limits the time after which a suit or other proceedings cannot be maintained in Court-Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649]. It i
