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2001(6) Supreme 294
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Dr. A.S. Anand, CJI., K.T. Thomas, R.C. Lahoti, N. Santosh Hegde & S.N. Variava, JJ.
Dadi Jagannadham -Appellant
versus
Jammulu Ramulu & Ors. -Respondents
Civil Appeal No. 5639 of 2001
(Arising out of SLP (C) No. 13724 of 1990)
Decided on 23-8-2001
Counsel for the Parties :
For the Appellant : P.S. Narasimha, P. Sridhar and Guntur Prabhakar, Advocates.
For the Respondents : Sarvesh Kr. Bisaria and K.R. Nagaraja, Advocates.
Held : A plain reading of Order XXI Rule 92 C.P.C. shows that the Court could either dismiss an application or allow an application. Order XXI Rule 89 C.P.C. prescribes no period either for making the application or for making the deposit. The Limitation Act also prescribes no period for making a deposit. However Article 127, Limitation Act prescribes a period within which an application to set aside a sale should be made. Earlier, this was 30 days, now it has been enhanced to 60 days. Unless there was a period prescribed for making a deposit, the time to make the deposit would be the same as that for making the application. This is so because if an application is made beyond the period of limitation, then a deposit made at that time or after that period would be of no use. Normally, when the legislature wishes to prescribe a period for making a deposit, it does so by using words to the effect "No deposit shall be made after .... days" or "a deposit shall be made within .... days" or "no application will be entertained unless a deposit is made within .... days". Order XXI Rule 92(2) C.P.C. does not use any such expressions. The relevant portion of Order XXI Rule 92(2) C.P.C. reads as follows :
"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 30 days from the date of sale-the Court shall make an order setting aside the sale."
Thus Order XXI Rule 92(2) C.P.C. is only taking away discretion of the Court to refuse to set aside the sale where an application is made and allowed and the deposit has been made within 30 days from date of sale. It is thus clear that Order XXI Rule 92(2) C.P.C. is not prescribing any period of limitation within which a deposit has to be made. Viewed in this context the intention of the legislature in extending the period under Article 127 Limitation Act may be seen. It is very clear from the Statement of Objects and Reasons, which have been set out hereinabove, that the period under Article 127 Limitation Act was extended from 30 days to 60 days in order to give more time to persons to make deposits. The legislature has noted that the period of 30 days from the date of sale was too short and often caused hardships because Judgment-debtors usually failed to arrange for moneys within that period. The question then would be whether by merely amending Article 127 Limitation Act the legislature has achieved the object for which it increased the period of limitation to file an application to set aside sale. Having given our careful consideration to the question, we are of the opinion that there is no anomaly and that there are no different periods of limitation for making deposits and/or filing an application for setting aside the sale. It is by virtue of Order XXI Rule 89 C.P.C. that an application for setting aside a sale and a deposit can be made. Order XXI Rule 89 C.P.C. does not prescribe any period within which the application is to be made or deposit is to be made. All that Order XXI Rule 92(2) provides is that if the deposit is made within 30 days from the date of sale and an application is filed then the Court would have no discretion but to set aside the sale. That does not mean that if the deposit is made after 30 days the Court could not entertain the application. If the deposit is made beyond the period of 30 days, but within the period of 60 days, then it will be within the discretion of the Court whether or not to grant the application. Thus, an application can be made within the period prescribed under Article 127, Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order XXI Rule 92(2) the deposit can also be made within 60 days. In our view, therefore, the view expressed in P.K. Unni s case that Order XXI Rule 92(2) C.P.C. prescribes a period of limitation for making a deposit is not correct. In this view of the matter, we see no merits in the Appeal. We see no infirmity in the impugned Order. The Appeal stands dismissed. There will be no Order as to costs. (Paras 15, 16, 17, 18 and 19)
JUDGMENT
S.N. Variava, J.-Leave granted.
2. The question raised in this Appeal is whether the period of limitation for making deposit, in an application to set aside sale of immovable property under Order XXI Rule 89 of the Code of Civil Procedure, is 30 days from the date of sale (being the period prescribed in Order XXI Rule 92(2) C.P.C.) or 60 days from the date of sale (as prescribed in Article 127 of the Limitation Act).
3. Briefly stated the facts are as follows:
On 25th February, 1980 a decree was obtained in a suit based on a promissory note executed on 21st January, 1972. That decree was put into execution and the property of the Judgment-debtor was attached and put up for sale. The sale was held on 22nd November, 1982.
4. On 21st January, 1983 i.e. on the 59th day after the date of sale, an application was filed under Order XXI Rule 89 C.P.C. and the prescribed amount was also deposited.
5. On 11th March, 1983 the executing Court dismissed the application on the ground that the deposit was not made within 30 days as prescribed under Order XXI Rule 92(2) C.P.C. The Judgment-debtor filed an Appeal which was allowed on 3rd September, 1983. The Order of the executing Court was set aside. The application of the Judgment-debtor was allowed and the sale was set aside.
6. The Civil Revision Petition filed by the Auction Purchaser was dismissed by the High Court of Andhra Pradesh on 1st February, 1990. It was held that Courts had to harmonise the two provisions and interpret the same having regard to the intention of the legislature. It was held that the Judgment Debtor should be given the benefit of the enlarged period of limitation under Art. 127 of the Limitation Act.
7. It must be mentioned that in coming to the above conclusion the Andhra Pradesh High Court relied upon a Judgment of this Court in the case of Basavantappa v. Gangadhar Narayan Dharwadkar & Anr.1. In that case it was held that the two provisions had to be harmoniously construed. In Basavantappa s case this Court had endorsed the view of the Madras High Court, in the case of Thangammal & Ors. v. K. Dhanalakshmi Anr.2 that there was an inconsistency in these two provisions and that the legislature should take steps to remove the inconsistency.
8. On 20th February, 1990 this Court in the case of P.K. Unni v. Nirmala Industries and Ors.3 held that the limitation period for making deposit in an application for setting aside sale under Order XXI Rule 89 is 30 days from the date of sale as prescribed under Order XXI Rule 92(2). It was noted that under Article 127, Limitation Act, 1963 the period for making an application for setting aside the sale was 30 days. It was noted that, in 1974, the Limitation Act was amended and the period of Limitation to file an application to set aside sale was extended from 30 days to 60 days. This Court noticed that the Statement of Objects and Reasons, in extending the period to 60 days, was as follows:
"An application to set aside a sale in execution of a decree on deposit under Rule 89 of Order XXI is required to be made within 30 days from the date of the sale. Experience shows that this period is too short and often causes hardship because the judgment-debtors usually fail to arrange for moneys within that time. Banks usually take more than 30 days to sanction loans and advances. In the circumstances, Entry 127 of the Schedule to the Limitation Act is being amended to increase the period of limitation to 60 days in respect of an application to set aside a sale in execution of a decree. This increase in the period of limitation will not affect the purchaser because five per cent of the purchase money is required to be paid to him. The advantage of the increased period of limitation will also be available to an application under Rule 90 or Rule 91 of Order XXI to set aside a sale in execution of a decree. In view of the increase in the period of limitation, confirmation of a sale will have to await the expiry of the increased period o
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