G. Rajarethna Naikkan vs P.N. Parameswara Kurup

P.K. Balasubramanyan, J.—This revision is by the judgment debtor. In execution of a decree for money against him, the respondent-decree holder brought the property to sale and purchased the same in Court auction. The judgment debtor filed an application under Order- XXI, Rule 90 of the CPC for setting aside the sale. That application was filed out of time with the result that the executing Court dismissed that application. The judgment debtor filed C.M.A. 243 of 1995 before this Court challenging the dismissal of that application. This Court by judgment dated 28-3-1996 agreed with the finding of the executing Court and affirmed the dismissal of the application under Order XXI, Rule 90 of the Code of Civil Procedure. Before this Court an attempt was made to contend on behalf of the judgment debtor that the application for setting aside the sale though out of time as an application under Order XXI, Rule 90 of the CPC was maintainable u/s 47 of the CPC and to be treated as one under that provision. This Court noticed that the application in question was made by the judgment debtor only under XXI, Rule 90 of the CPC and therefore this Court did not think it necessary or proper to consider whether the application should be directed to be treated as one u/s 47 of the Code of Civil Procedure. This Court therefore left open the question whether an application u/s 47 of the CPC at the instance of the judgment debtor was maintainable or not. An argument that even if the application under Order XXI, Rule 90 of the CPC was barred by limitation, this Court as an appellate Court had the power to set aside the sale in appropriate cases was rejected by this Court by pointing out that such a power may vest in the Supreme Court under Article 142 of- the Constitution of India, but is not apower available to this Court governed by the CPC and the Limitation Act. In that judgment, this Court also noticed that though the Court made an attempt to persuade the decree holder-auction purchaser to receive all the amounts due to him under the decree, and to agree to the sale being set aside, he was not amendable to that course and hence this Court was not in a position to set aside the sale by consent as well. This decision was sought to be challenged before the Supreme Court by the judgment debtor by filing a petition for Special Leave to Appeal (C) No. 3891 of 1996. By order dated 30-7-1996, the Supreme Court dismissed that petition for Special Leave to Appeal. Thus the attempt of the judgment debtor to get the sale set aside under Order XXI, Rule 90 of the Code failed.

The sale in execution was held on 12-10-1992. The application under Order XXI, Rule 90 of the CPC was filed by the judgment debtor on 14-12-1992. The petition for Special Leave to Appeal arising from that proceeding was dismissed by the Supreme Court on 30-7-1996. On 13-8-1996 within a month of the dismissed of the Application for Special Leave to Appeal by the Supreme Court, the judgment debtor filed E. A. 268 of 1996 before the executing Court u/s 47 of the Code of Civil Procedure. That application was obviously even beyond three years of the date of sale. The judgment debtor therefore sought an exclusion of the time between 14-12-1992 and 30-7-1996 when he claimed that he was bona fide prosecuting his application under Order XXI, Rule 90 of the CPC and if the said period was excluded in terms of Section 14 of the Limitation Act, the present application u/s 47 of the CPC was within time. This claim of the judgment debtor was repudiated by the decree holder who contended that Section 14 of the Limitation Act had no application, that in any view Section 14(2) of the Limitation Act was not attracted to the case on hand, that the application was belated and was liable to be dismissed.

The executing Court held that Sections 14 and 15 of the Limitation Act had no application to the case on hand and the present application was barred by limitation. That Court also held that in view of the dismissal of the earlier application under Order XXI, Rule 90 of the Code, the judgment debtor was not entitled to put forward the grounds of irregularity and fraud in the publishing and conducting of the sale and that no sufficient ground was made out for setting aside the sale in this case. The executing Court therefore dismissed the application. This revision is filed by judgment debtor challenging that order of the executing Court. It is contended on behalf of the judgment debtor that the judgment debtor was entitled to the exclusion of the period from 14-12-1992 to 30-7-1996 when he was bona fide proceecuting the application for setting aside the sale under Order XXI, Rule 90 of the CPC and that the application u/s 47 of the CPC was maintainable and the sale was liable to be declared void in the case on hand in view of the failure to comply with the mandatory requirements of Order XXI of the CPC and that it would be unjust and inequitable not to interfere with the sale in this case. The decree holder who had filed a caveat before this Court appearing through counsel contended that the finding of the executing Court that Section 14 of the Limitation Act has no application in this case was correct, that the application u/s 47 of the CPC is not maintainable and that there was no bona fides in the present application.

When a judgment-debtor makes an application under Order XXI, Rule 90 of the Code of Civil Procedure, he accepts the factum of the sale and seeks to challenge it on the ground that the sale is vitiated by material irregularity, or fraud in publishing or conducting the sale. When an application u/s 47 of the CPC is made by a judgment-debtor challenging the sale, he claims the sale to be void for illegality or in any event voidable on grounds other than those referred to in Order XXX, Rule 90 of the CPC and in a case where the judgment-debtor invokes Section 47 of the Code, Order XXI, Rule 90 of the CPC could not be applied. In Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, , the Supreme Court has approved the observations of Justice Colrdige in Holmes v. Russel (1841) 9 Dowl 487 to the following effect:

"It is difficult, sometimes to distinguish between an irregularity and a nullity; but the Safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objections; if he can waive it, it amounts to an irregularity if he cannot, it is a nullity."

And has commended it as a ''workable test''. Their Lordships have also quoted Mr. Justice Mookerjee in Ashutosh Sikdar v. Behari Lal Kirtania ILR (1908) Cal 61, to the following effect :

"......, no hard and fact line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated."

In S.A. Sundararajan Vs. A.P.V. Rajendran, the Supreme Court after referring to the decision in Dhirendra Nath referred to above observed that errors committed in settling the sale proclamation which are mere irregularities cannot be discribed as errors which render a sale void and hence the application made in that case could not be treated as one u/s 47 of the Code of Civil Procedure. Learned counsel for the decree-holder contended that by applying under Order XXI, Rule 90 of the Code of Civil Procedure, the judgment-debtor has chosen to accept the sale and attack it as vitiated by irregularity and in such a situation he is not entitled to go back and adopt the stand that the sale itself was void. Alternatively he contended that even if the judgment-debtor can maintain the application u/s 47 of the Code, the pursuing of an application under Order XXXI. Rule 90 of the Code could not be said to be a proceeding relating to seeking the same relief since the two proceedings are distinct and different and consequently Section 14 of the Limitation Act could not be invoked by the judgment-debtor.

In Roshanlal Kuthalia and Others Vs. R.B. Mohan Singh Oberoi, , the Supreme Court observed "certainly, Section 14 if wide enough to cover periods covered by execution proceedings." The Supreme Court relied on the decision in Raghunath Das Vs. Gokal Chand and Another, in support. In Zafar Khan and Others Vs. Board of Revenue, U.P. and Others, , the Supreme Court assumed that earlier proceedings u/s 144 of the CPC was a civil proceeding for the purpose of Section 14 of the Limitation Act. Earlier the High Court of Calcutta in Abhoy Kanta Gohain Vs. Gopinath Deb Goswami and Others, had held that Section 14 of the Limitation Act was wide enough to cover periods covered by execution proceedings. This view had been taken also by the High Courts of Madras, Madhya Pradesh and Allahabad. In this situation, taking note of the object of Section 14 of the Limitation Act, there cannot be any difficulty in overruling the contention of learned counsel for the decree-holder that Section 14 of the Limitation Act has no application in this case.

But I do see force in the submission of learned counsel for the decree-holder that what applies in the case on hand is Section 14(2) of the Limitation Act and not Section 14(1) of the Limitation Act. The present proceeding initiated by the judgment-debtor is an application u/s 47 of the Code of Civil Procedure. The period he seeks to exclude with reference to Section 14 of the Limitation Act is the period during which he was prosecuting an earlier application under Order XXI, Rule 90 of the Code of Civil Procedure. Section 14(2) of the Limitation Act makes it clear that the prosecution of the earlier proceeding could have been also by way of appeal or revision. In the case on hand the judgment-debtor had filed the application under Order XXI, Rule 90 of the Code on 14-12-1992 and was bona fide prosecuting that proceeding by way of C.M.A. 243 of 1995 and by way of petition for Special Leave to Appeal 10752 of 1996 until the dismissal of that petition by the Supreme Court on 30-7-1996. If therefore the judgment-debtor satisfies the requirements of Section 14(2) of the Limitation Act. He could claim the exclusion of the period from i4-t2-1992 to 30-7-1996. There is nothing to indicate that the prosecution by the judgment-debtor of the application under Order XXI. Rule 90 or the CPC was not done in good faith. Of course learned counsel for the decree-holder may have a point when he points out that the application under Order XXI, Rule 90 of the Code itself was filed beyond the time fixed by the Statute and obviously knowing that the application was beyond time and the prosecution of such an application, the appeal therefrom and the petition for Special Leave to appeal in the Supreme Court cannot be deemed to be a prosecution in good faith. But considering the fact that the judgment-debtor was trying to avert the Court sale or was trying to get back his property sold in execution of a decree, this is obviously a case where the benefit of doubt ought to be given to the judgment-debtor to hold that he was prosecuting the earlier proceeding diligently and in good faith.

Section 14(2) of the Limitation Act insists that the earlier proceeding should have been prosecuted against the same party for the same relief and the Court was not able to entertain it from defect of jurisdiction or other cause of a like nature. There is no dispute here that the earlier proceeding under Order XXI, Rule 90 of the Code was against the same party, namely, the decree holder-auction purchaser. That element ts also therefore satisfied. Learned counsel for the decree-holder contended that it cannot be said that the claiming of the relief under Order XXI, Rule 90 of the CPC is the ''same relief'' as the one claimed in an application u/s 47 of the Code and therefore in terms of Section 14(2) of the Limitation Act, the judgment-debtor could not be entitled to exclusion. He also contended that in the earlier application, it was not because of any defect of jurisdiction or other cause of a like nature that the Court was unable to entertain or to that application or grant relief to the judgment-debtor. He pointed out that when an application is dismissed by the Court on the ground that it was not filed within the time prescribed by law, it cannot be the case of the Court being unable to entertain the application from defect of jurisdiction or other cause of a like nature''. In Gurdit Singh and Others Vs. Munsha Singh and Others, , Justice Jaswant Singh speaking for the majority has stated thus :

"Now the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important. Their scope has to be determined according to the rule of Ejusdem Generis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the Court from entertaining the previous suit."

The question therefore is essentially whether the earlier application under Order XXI, Rule 90 of the Code could not be entertained by the Court from defect of jurisdiction or an analogous cause. The Court could not entertain the application or grant relief to the judgment-debtor essentially because of the fact that the application under Order XXI, Rule 90 of the Code was filed beyond the time prescribed by Article 127 of the Limitation Act. u/s 3 of the Limitation Act, the Court is obliged to dismiss every suit instituted, appeal preferred or application made after the prescribed period of limitation although limitation has not been set up as a defence. Could it be said that the disability to entertain an application by the Court competent to entertain the application, on the ground that it was beyond time, could be brought within the purview of the Court being unable to entertain the application from defect of jurisdiction or other cause of a like nature? It had earlier been held that Section 3 of the Limitation Act does not in any way touch the jurisdiction of the Court in respect of the proceedings. The Supreme Court in Ittavira Mathai Vs. Varkey Varkey and Another, , rejected an argument that the decree passed by Court overlooking the bar of limitation could be attacked in a collateral proceeding or in a subsequent suit on the ground that it suffered from want of jurisdiction. But in Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, , the Supreme Court observed ;

"A plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these pleas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of Section 115 of the Code."

The question then is whether the dismissal of an application under Order XXI, Rule 90 of the CPC on the ground that it was barred by limitation, not having been filed within the period prescribed by Article 127 of the Limitation Act, could be brought within the purview of the Court being unable to entertain it "from defect of jurisdiction or other cause of a like nature."

I should think that what the Supreme Court said in Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, , must be understood only in the context of interference in a revision u/s 115 of the Code of Civil Procedure. Their Lordships were only emphasising that since the bar of res judicata precludes the Court from going into the merits of the controversy and a plea of limitation if upheld, would bar the Court from granting relief to a plaintiff, a decision on those pleas must be taken to relating to a decision involving the jurisdiction of the Court to proceed further with the suit and in that context a finding on those matters are within the purview of the revisional Court u/s 115 of the Code, of Civil Procedure. That this is how the said decision should be understood is also clear from the further observations of their Lordships to the effect "But, an erroneous decision on a question of law having no relation to question of jurisdiction will not be corrected by the High Court u/s 115 of the Code." According to me, every time a Court refuses the relief to a plaintiff or an applicant on the ground that the suit or the application is barred by limitation, it cannot be taken to be a case of the Court being unable to entertain the application from defect of jurisdiction or other cause of a like nature. The mere fact that the application under Order XXI, Rule 90 of the Code earlier made by the judgment-debtor was dismissed by the Court on the ground that it was beyond time, would not enable the judgment-debtor to contend that he is entitled to invoke Section 14(2) of the Limitation Act to seek an exclusion in respect of a subsequent application filed by him u/s 47 of the CPC because, in the earlier application the Court could not grant him relief for want of jurisdiction or defect in jurisdiction. It is a case where, the Court had jurisdiction but the judgment-debtor had failed to invoke it in time.

The other limb of Section 14 of the Limitation Act is whether the petitioner was prosecuting a proceeding against the respondent "for the same relief when he was pursuing his application under Order XXI, Rule 90 of the Code of Civil Procedure. It has been suggested in some of the decisions including the decision of the High Court of Madras in Vaithilinga Naidu Vs. Narayanaswami Naidu, , that the expression ''the same relief occurring in Section 14 of the Limitation Act calls for a liberal construction. But in the decision in Moidin Bacha Rowther and Another Vs. I.S. Chidambaram Pillai, . The Division Bench of the Madras High Court relying on the decision of the Privy Council in AIR 1935 85 (Privy Council) , held that in the light of that decision, it was not possible to construe the words ''the same relief in Section 14 of the Limitation Act in any liberal sense, so as to look not to the precise relief sought in the application, but to the ultimate object with which that relief was sought. Here, it is no doubt true that the ultimate object sought to be achieved by the judgment-debtor in the earlier application under Order XXI, Rule 90 of the Code, was also the setting aside of the Court sale. In the present proceeding u/s 47 of the Code also, the ultimate object is to have the sale set aside or declared void. In the decision of the Full Bench of the Madras High Court in A.P.V. Rajendran Vs. S.A. Sundararajan and Others, which was the subject-matter of appeal in S.A. Sundararajan Vs. A.P.V. Rajendran, , referred to earlier, the Full Bench of the Madras High Court comparing the scope of Section 47 of the CPC and Order XXI, Rule 90 of the CPC held as follows ;

"Notwithstanding the wording of Section 47 which is enough to cover all applications to set aside sales on the ground either of illegality or of irregularity, its scope has naturally to be restricted so as to give due effect to Order 21, Rule 90, C.P.C. Thus, if the sale is sought to be set aside on the ground of material irregularity in publishing and conducting the sale within the meaning of Order 21, Rule 90, then Section 47 cannot come into play at all, and the sale could be set aside only invoking Order 21, Rule 90. But if the sale is claimed to be void for certain illegality or voidable on ground of material irregularities not referred to in Order 21, Rule 90, then Section 47 has to be invoked and in such cases, Order 21, Rule 90, C.P.C. cannot come into play at all."

The Supreme Court while affirming that decision referred to the decision in Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, and pointed out that any objection to the drawing up of a sale proclamation would be within the purview of Order XXI, Rule 90 of the Code and not outside it, and that in that particular case, the grounds that were taken fell within the purview of Order XXI, Rule 90 of the Code and hence not within the purview of Section 47 of the Code of Civil Procedure. This decision thus indicates that though the object of both the proceedings may be to avoid the sale held in execution of a decree, a proceeding initiated under Order XXI, Rule 90of the CPC cannot be said to be a proceeding for the same relief as the one that may be sought for in an application u/s 47 of the Code. In Mrs. K.P.M. Saheed and Others Vs. The Aluminium Fabricating Company and Others, a Division Bench of this Court has also indicated this distinction. The Division Bench has held :

."It is the material irregularity or fraud which affects the method and manner of publishing the proclamation and the actual conduct of the sale that clothes the Court with a jurisdiction to set aside the sale under Order 21, Rule 90, C.P.C. Where Order 21, Rule 90 applies, Section 47 is not available. However, where there is inherent illegality in the execution application, such as want of leave of Court appointing a receiver, it is a matter arising in execution, outside the purview of Order 21, Rule 90 and thus within the scope of Section 47 of the Code. I am therefore inclined to the view that that limb of Section 14 of the Limitation Act is also not satisfied in this case.

In view of my conclusion as above, it has to be held that the judgment-debtor is not entitled to seek an execution of the time spent by him in prosecuting his application under Order XXI, Rule 90 of the Code with reference to Section 14 of the Limitation Act.

When a judgment-debtor seeks the setting aside of a sale by invoking Order XXI, Rule 90 of the Code, he is accepting the factum of the sale or the reality of the sale and is only questioning it on the basis of the material irregularities referred to in Order XXI, Rule 90 of the Code. In a case where the judgment-debtor is proceeding u/s 47 of the Code, he attacks the sale either on the ground that it is void, or that it is voidable on ground of illegality not covered by Order XXI, Rule 90 of the Code. In the case of simultaneous applications under Order 21, Rule 89 of the Code and Order 21, Rule 90 of the Code, it has been recognised that whereas in making the application under Order XXI, Rule 89 of the Code, the judgment-debtor accepts the validity of the sale, in making an application under Order XXI, Rule 90 of the Code, he is questioning the validity of the sale and hence he cannot prosecute both the applications simultaneously. But is that the position when an application under Order XXI, Rule 90 of the Code and an application u/s 47 of the Code are sought to be simultaneously prosecuted? I think, not; because, the grounds available for setting aside a sale under Order XXI, Rule 90 of the Code are not the same as the grounds available u/s 47 of the Code and in the words of the Division Bench "where Order XXI, Rule 90 applies, Section 47 is not available. In Mangal Prasad (dead) by LRs. and another Vs. Krishna Kumar Maheshwari and others, the Supreme Court has pointed out that an application u/s 47 of the Code cannot be treated as an application under Order XXI, Rule 90 of the Code and hence the bar prescribed under Order XXI,Rule89(2)of the Code insisting on withdrawal of the application for setting aside the sale would not come into play, at all. It is therefore clear that the relief that is sought for in an application under Order XXI, Rule 90 of the Code of Civil Procedure, is not the same as the relief that can be claimed in an application u/s 47 of the Code, though both can result in the relief of setting aside the sale, being granted. I am therefore of the view, that the doctrine of election cannot apply to disable the judgment-debtor from maintaining an application u/s 47 of the Code of Civil Procedure, merely because he has earlier filed an application under Order XXI, Rule 90 of the Code. The decision of the Calcutta High Court in Sri Madan Mohon Jew Vs. Sm. Bejoyabati Dassi and Others, was only one relating to application under Order XXI, Rule 89 and Order XXI, Rule 90 of the Code and in view of the decision of the Supreme Court in Mangal Prasad''s case the principle referred to therein cannot be extended to an application u/s 47 of the CPC and in the light of the discussion above, to apply the doctrine of election in the case of application under Order XXI, Rule 90 and Section 47 of the Code of Civil Procedure, I therefore overrule the contention on behalf of the decree-holder that the judgment-debtor having earlier applied for setting aside the sale under Order XXI, Rule 90 of the Code is estopped from filing an application u/s 47 of the Code of Civil Procedure.

The application u/s 47 of the Code was admittedly made out of time. In view of my conclusion that Section 14 of the Limitation Act is not available to the judgment-debtor to exclude the time spent by him in prosecuting the application under Order XXI, Rule 90 of the Code, he is not entitled to the exclusion of the period from 14-12-1992 to 30-7-1996. Hence the application u/s 47 of the Code has to be held to be one made out of time.

Though, the judgment-debtor sought to raise the contention that there was no notice to him under Order XXI, Rule 66 of the CPC before setting the sale proclamation, that point was not pursued before us. Morveover, a scrutiny of the B-Diary, shows that notice under Order XXI, Rule 66 of the Code was issued to the judgment-debtor and the same was served. The contention therefore that the sale was void for want of notice under Order XXI, Rule 66 of the Code even if this contention has any substance in view of the decision of the Supreme Court in Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, is not available to the judgment-debtor in this case. Hence the reliance placed on Desh Bandhu Gupta Vs. N.L. Anand and Rajinder Singh, is of no avail, in this case.

The other contention raised was that the Court need have sold only a part of the property and need not have sold the entire extent to realise the decree debt. The decision of the Supreme Court in Ambati Narasayya Vs. M. Subba Rao and another, was relied on. That was a case where 10 acres of land was sold for a price of Rs. 2400/-. Here, the property sold was of 10.14 cents with a building thereon. The report of the Commissioner indicated that the land was lying 30 feet below the road level. The judgment-debtor had ample opportunity to raise this objection at the appropriate time. There is also no acceptable material to show the value of the property or to show that the sale of only a portion of it would have been sufficient to satisfy the decree debts. That contention also lacks substance.

Thus, on the whole, I see no reason to interfere with the order of the executing Court in this Revision. Hence the order is confirmed and this Civil Revision Petition is dismissed without any order as to costs.