Mohan Lal Vs. Sh. Hari Prasad Yadav & Ors.
EmailAppeal: Civil Appeal No. 2647 of 1984
(From the judgment and Order dated 26.4.83 of the Patna High Court in C.R.No. 984 of 1982)
(From the judgment and Order dated 26.4.83 of the Patna High Court in C.R.No. 984 of 1982)
Petitioner: Mohan Lal
Respondent: Sh. Hari Prasad Yadav & Ors.
Apeal: Civil Appeal No. 2647 of 1984
(From the judgment and Order dated 26.4.83 of the Patna High Court in C.R.No. 984 of 1982)
(From the judgment and Order dated 26.4.83 of the Patna High Court in C.R.No. 984 of 1982)
Judges: KULDIP SINGH & YOGESHWAR DAYAL, JJ.
Date of Judgment: May 13, 1994
Appearances:
Mr. S.S. Javali, Senior Advocate Mr. R.P. Singh, Mr. R.K. Khanna and Mr. S.K. Sinha, Advocates with for the Appellant
Mr. K.K. Gupta, Mr. Shankar Divate, Advocate for Mrs. Lalitha Kaushik, Advocate for the Respondents.
Head Note:
LIMITATION ACT
Section 127, 5 – Order 21 – Rule 89 of the code of civil procedure – Application to set aside sale is governed by article 127 of the limitation act and not by section 5 of limitation act – Appeal dismissed.
Held:
Held that application under Order 21 – Rule 89 of the Civil Procedure code being an application under the provisions of Order 21, Section 5 of the limitation Act on its own language is not applicable specifically. (Para 6)
Held that it is settled law that an application to set aside sale under Order 21, rule 89 of the Code is governed by Article 127 of the Limitation Act, Section 5 of the Limitation Act has no application on its own wordings. (Para 5)
Held that as time for making as application under rule 89 of Order 21 of the Code is not fixed by the Court, Section 148 of the code would not be applicable to the present case. (Para 7)
Held that the High Court was thus right in coming to the conclusion that the executing court had no jurisdiction whatsoever to entertain the application purporting to be under Order 21 – rule 89 of the code after the period of limitation prescribed by Article 127 of the Limitation Act, has expired.
JUDGEMENT:
YOGESHWAR DAYAL, J.:
1. This appeal is directed against the judgment o f the Single Judge of the High Court of Patna dated 26th April, 1983 whereby the Single Judge set aside an order dated 28th May, 1982 passed by the executing court in Execution Case No. 7 of 1977 while giving the benefit of Order 21 rule 89 of the code of Civil Procedure (hereinafter referred to as ‘the Code’) to the judgment debtor.
2. Undoubtedly the sale took place on 25th May, 1981 and even the objections, which were filed for setting aside the sale under Order 21 rule 90 of the code were dismissed on 4th May, 1982. An application purporting to be under 21 rule 89 of the Code was filed on 28th May, 1982. It may be mentioned that even an appeal has been filed against the order of the executing court dated 4th May, 1982 dismissing the objections to the sale filed under Order 21 rule 90 of the Code the executing court granted time for moving the High Court till 22nd May, 1982 and the appeal filed by the appellant against the order of the executing court dismissing objections under Order 21 rule 90 of the Code stood dismissed on 21st December, 1983. The said order is also under challenge before this Court in Special Leave Petition (Civil) No. 8523 of 1985 and is being disposed of separately.
3. As stated above the application purpoting to be under Order 21 rule 89 of the Code for setting aside the sale was filed on 28th May, 1982 which was granted by the executing court on the same date by the following order:-
“28.5.82
O r d e r
—–
The Judgment-debtor, has placed before me, has since recoincided to his fate after exhausting all the processes, at his command and is now ready to deposit the decreetal amount and he is ready to deposit another Rs.5000/- and undertakes to deposit the remaining amount within a short period. It was submitted on his behalf that irreparable loss will be caused if his prayer is not allowed.
In the interest of justice and in the circumstance of the case I take the liberty to order the judgment debtor to deposit hence forth Rs.5000/- and is order to deposit the remaining amount under decree latest by 10.6.82 failing which the sale will be confirmed.
I also find that the auction purchaser in the circumstances would be put to loss the position being that the judgment-debtor would separately deposit another amount equivalent to the interest at the rate of 5% from the date of deposit by the auction purchaser till 10.6.82 by way of compensation remuneration for the auction purchasers. This amount is ordered to be deposited alongwith the decretal amount on separate item on this amount by month of June failing which the sale in question will be confirmed.
The judgment debtor must comply with the order by the date fixed.
Sd/ R.C. Ram
A.S.I. III”
4. On revision being filed by the auction purchaser against this order, the High Court accepted the same and dismissed the application filed under Order 21 rule 89 of the Code as being barred by time. the other objections of the auction purchaser, as to the maintainability of the application under Order 21 rule 89 of the Code in view of the dismissal of the objections under Order 21 rule 90 of the Code were not decided since the High Court felt that the application under Order 21 rule 89 was barred by time in view of the limitation provided under Article 127 of the Limitation Act, which provides as under:-
——————————————————————
Article Description Period Time from
of of which period
suit limitation begins to run
——————————————————————–
127 To set aside a sale Sixty days The date of
in execution of a the sale.
decree including any
such application by
a judgment-debtor. ———————————————————————
5. It is settled law that an application to set aside sale under Order 21 rule 89 of the Code is governed by Article 127 of the Limitation Act. Section 5 of the Limitation Act has no application no its own wordings. Section 5 of the Limitation Act reads as follows:-
“5. Extension of prescribed period in certain cases. – Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1909, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not perferring the appeal or making the application within such period.
Explanation – The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”
6. The application under Order 21 rule 89 of the Code being an application under the provisions of Order 21, Section 5 of the Limitation Act, on its own language, is not applicable specifically.
7. We are thus left with the question whether Section 148 of the Code would be applicable to the present case or not. Again Section 148 of the code would not be applicable to the present case for the simple reason that the time for making an application under rule 89 of Order 21 of the Code is not fixed by the Court.
8. The High Court was thus right in coming to the conclusion that the executing court had no jurisdiction whatsoever to entertain the application purporting to be under Order 21 rule 89 of the Code after the period of limitation prescribed by Article 127 of the Limitation Act.
9. The result is that the appeal fails and is dismissed.
10. Learned counsel for the judgment-debtor had invited us to give a finding as to the extent of the property which was sold as a result of court sale. We are not inclined to go into this question in the present proceedings as it is a matter to be decided by the executing court while granting the sale certificate.
1. This appeal is directed against the judgment o f the Single Judge of the High Court of Patna dated 26th April, 1983 whereby the Single Judge set aside an order dated 28th May, 1982 passed by the executing court in Execution Case No. 7 of 1977 while giving the benefit of Order 21 rule 89 of the code of Civil Procedure (hereinafter referred to as ‘the Code’) to the judgment debtor.
2. Undoubtedly the sale took place on 25th May, 1981 and even the objections, which were filed for setting aside the sale under Order 21 rule 90 of the code were dismissed on 4th May, 1982. An application purporting to be under 21 rule 89 of the Code was filed on 28th May, 1982. It may be mentioned that even an appeal has been filed against the order of the executing court dated 4th May, 1982 dismissing the objections to the sale filed under Order 21 rule 90 of the Code the executing court granted time for moving the High Court till 22nd May, 1982 and the appeal filed by the appellant against the order of the executing court dismissing objections under Order 21 rule 90 of the Code stood dismissed on 21st December, 1983. The said order is also under challenge before this Court in Special Leave Petition (Civil) No. 8523 of 1985 and is being disposed of separately.
3. As stated above the application purpoting to be under Order 21 rule 89 of the Code for setting aside the sale was filed on 28th May, 1982 which was granted by the executing court on the same date by the following order:-
“28.5.82
O r d e r
—–
The Judgment-debtor, has placed before me, has since recoincided to his fate after exhausting all the processes, at his command and is now ready to deposit the decreetal amount and he is ready to deposit another Rs.5000/- and undertakes to deposit the remaining amount within a short period. It was submitted on his behalf that irreparable loss will be caused if his prayer is not allowed.
In the interest of justice and in the circumstance of the case I take the liberty to order the judgment debtor to deposit hence forth Rs.5000/- and is order to deposit the remaining amount under decree latest by 10.6.82 failing which the sale will be confirmed.
I also find that the auction purchaser in the circumstances would be put to loss the position being that the judgment-debtor would separately deposit another amount equivalent to the interest at the rate of 5% from the date of deposit by the auction purchaser till 10.6.82 by way of compensation remuneration for the auction purchasers. This amount is ordered to be deposited alongwith the decretal amount on separate item on this amount by month of June failing which the sale in question will be confirmed.
The judgment debtor must comply with the order by the date fixed.
Sd/ R.C. Ram
A.S.I. III”
4. On revision being filed by the auction purchaser against this order, the High Court accepted the same and dismissed the application filed under Order 21 rule 89 of the Code as being barred by time. the other objections of the auction purchaser, as to the maintainability of the application under Order 21 rule 89 of the Code in view of the dismissal of the objections under Order 21 rule 90 of the Code were not decided since the High Court felt that the application under Order 21 rule 89 was barred by time in view of the limitation provided under Article 127 of the Limitation Act, which provides as under:-
——————————————————————
Article Description Period Time from
of of which period
suit limitation begins to run
——————————————————————–
127 To set aside a sale Sixty days The date of
in execution of a the sale.
decree including any
such application by
a judgment-debtor. ———————————————————————
5. It is settled law that an application to set aside sale under Order 21 rule 89 of the Code is governed by Article 127 of the Limitation Act. Section 5 of the Limitation Act has no application no its own wordings. Section 5 of the Limitation Act reads as follows:-
“5. Extension of prescribed period in certain cases. – Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1909, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not perferring the appeal or making the application within such period.
Explanation – The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”
6. The application under Order 21 rule 89 of the Code being an application under the provisions of Order 21, Section 5 of the Limitation Act, on its own language, is not applicable specifically.
7. We are thus left with the question whether Section 148 of the Code would be applicable to the present case or not. Again Section 148 of the code would not be applicable to the present case for the simple reason that the time for making an application under rule 89 of Order 21 of the Code is not fixed by the Court.
8. The High Court was thus right in coming to the conclusion that the executing court had no jurisdiction whatsoever to entertain the application purporting to be under Order 21 rule 89 of the Code after the period of limitation prescribed by Article 127 of the Limitation Act.
9. The result is that the appeal fails and is dismissed.
10. Learned counsel for the judgment-debtor had invited us to give a finding as to the extent of the property which was sold as a result of court sale. We are not inclined to go into this question in the present proceedings as it is a matter to be decided by the executing court while granting the sale certificate.
