Jagu Annayaba Jadhav vs Bajaran Auba Jadhav

V.G. Chitale, J.—This revision application arises out of an application by the judgment-debtor under Order XXI, rule 89, Civil Procedure Code.

The relevant facts are as follows: In execution of a money decree certain property belonging to the judgment-debtor was put up for sale. The amount for which the property was sold was Rs. 412-91. The sale was held on April 19, 1961. On May 16, 1961 the judgment-debtor deposited in the executing Court Rs. 112-91. The summer vacation for the executing Court commenced within thirty days of the date of the sale and the Court opened after summer vacation on June 5, 1961. On June 5, 1961, the judgment-debtor deposited in the executing Court Rs. 25 more and applied for setting aside the sale under Order XXI, rule 89, Civil Procedure Code.

This application was opposed by the auction-purchaser and the decree-holder on the ground that the conditions laid down by Order XXI, rule 89, Civil Procedure Code, were not complied with, hence the sale could not be set aside.

The executing Court took the view that the time prescribed by Article 166 of the Limitation Act, 1908 (old Act) could be extended u/s 148, Civil Procedure Code. Accordingly it extended the time and on principles of equity it condoned the delay and passed the order setting aside the sale. Against this order, the decree-holder and the auction-purchaser, preferred an appeal to the District Court, Satara. The learned Assistant Judge, who heard the appeal, held that in view of the decision in Amritlal Narsilal v. Sada-Shiv Anna (1) [ Case referred miss] and the decision of Madras High Court in Kalidasa Chetty v. Dodda Suidha Chetty (2), [ Case reffered miss] time could not be extended u/s 148, CPC and the executing Court was wrong in extending the time. On facts also he held that the conditions laid down by Order XXI, rule 89, CPC were not complied with. Having taken this view, he allowed the appeal and set aside the order passed by the executing Court. Thus, in effect, he dismissed the judgment-debtor''s application for setting aside the sale. The present revision application is preferred against this order.

This revision application is referred to a Division Bench in view of the decision in Amritlal''s case (1) [ Case referred miss]. Mr. Bengeri, who appears for the petitioner-judgment-debtor, submits that the view taken by the lower appellate Court is wrong. He relies on the wording of Order XXI, rule 89, CPC and points out that the only condition laid down by that rule is that an application to set aside a sale under Order XXI, rule 89, CPC can be made only on depositing the amount mentioned in that rule. That rule does not prescribe the limitation for filing such an application. The limitation for filing such an application is prescribed by Article 166 of the Limitation Act, 1908. Mr. Bengeri submits that Article 166 must be read with section 4 of the Limitation Act. If so, the judgment-debtor was entitled to file the present application to set aside the sale when the Court opened on June 5, 1961, after the summer vacation, as the period prescribed by Article 166 expired during the summer vacation. Mr. Bengeri does seek to support before us the view of the executing Court that time could be extended u/s 148, Civil Procedure Code. We find that the first contention of Mr. Bengeri is correct. In view of (1) AIR l944 Bom. 233 : (l943)46 Bom. L R 432 (2) Kalidasa Chetty Vs. Dodda Siddha Chetty Another, that, we need not enter into the question whether the Court could extend the time u/s 148, Civil Procedure Code.

Order XXI, rule 89, CPC runs thus:

(1) Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired, before such sale, may apply to have the sale set aside on his depositing in Court,

(a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to set aside the sale of his immoveable property, he shall not, unless, he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of Bale.

The material expression to be taken into consideration for the purpose of this revision application is "may apply to have the sale set aside on his depositing in Court". On the facts stated above, it is quite clear that the judgment-debtor was entitled to file the present application to set aside the sale under Order XXI, rule 89, CPC on June 5, 1961, the date on which the Court opened after the summer vacation, the period of limitation for filing such an application having expired during the summer vacation. The only condition incumbent on the judgment-debtor was to deposit along with the said application the amount mentioned in rule 89. On the facts stated above, it is quite clear that the necessary amount was deposited by the judgment-debtor on June 5, 1961, when he was entitled to submit the application to set aside the sale and when in fact ho did apply. It is thus quite clear that on June 5, 1961, when the judgment-debtor applied for setting aside the sale, the conditions prescribed by rule 89 of Order XXI, CPC were complied with by him. The fact that a part of the amount was deposited earlier would, certainly not prejudice the rights of the judgment-debtor, if he otherwise had them according to law. We do not see any reason why section 4 of the Limitation Act should not apply to applications under Order XXI, rule 89, Civil Procedure Code. On the wording of section 4 it is clear that it applies not merely'' to suits and appeals, but applications as well. Decision of this Court in Veerappa Channappa Gondi Vs. Iratappa Malagi, , is directly in point. Mr. Gadgil for the opponents is unable to point out any reason why the view taken in this decision should not be accepted.

Mr. Gadgil relies on The Dharamsi Morarji Chemical Co. Ltd. Vs. Ochhavlal Hargovandas Shah, and Jamnadas Shivram Bari Vs. Chunilal Hambirmal Marwadi, . Both these decisions proceed on the finding that the Court on the Original Side of the Bombay High Court is not closed during summer vacation, as contemplated by section 4 of the Limitation Act, for the purpose of filing suits with which these decisions were concerned. In the case before us, there is no doubt that the Court concerned was closed for summer vacation upto June 5,1961, and the limitation under Article 166 of the limitation Act expired during the summer vacation. It is, therefore, clear that the judgment-debtor''s application under Order XXI, rule 89, CPC submitted on June 5, 1961, would be well within limitation in view of section 4 of the Limitation Act. On the facts stated above, it is equally clear that the necessary amount, as required by Order XXI, rule 89, Civil Procedure Code, was deposited in the Executing Court by June 5,1961. There is, therefore, no reason why the judgment-debtor cannot avail of his right under Order XXI, rule 89, Civil Procedure Code. In our opinion, the mere fact that a part of the above-mentioned amount was deposited earlier than June 5, 1961, cannot adversely affect the judgment-debtor''s right under Order XXI, rule 89, Civil Procedure Code. Mr. Gadgil referred to The British India Steam Navigation Co. Vs. H.M. Sharafally Merchant by his Agent H.S. Mahomed Bhoy, and In Re: Thokkudubivyanu Immaniyelu and Others, . These decisions also proceed on the same basis as the above-mentioned Bombay decisions relied upon by Mr. Gadgil. There is nothing to indicate that in the present case the Court was open for instituting suits and applications during the summer vacation. We, therefore, hold that in the present case the judgment-debtor did comply with the conditions prescribed by Order XXI, rule 89, Civil Procedure Code.

The lower appellate Court felt that the decision of this Court in Amritlal''s case AIR 1944 Bom. 233 = (1943) 46 Bom. L R 432 laid down that in no case an application under Order XXI, rule 80, CPC could be filed beyond thirty days. In effect it felt that the said decision laid down that section 4 of the Limitation Act does not apply to applications under Order XXI, rule 89, Civil Procedure Code. We have carefully considered the said decision. The only point decided in that case 18 that unless the conditions prescribed by Order XXI, rule 89, CPC are complied with, executing Court has under that rule no jurisdiction to set aside a sale held in execution of a decree. The point that arises before us did not arise in that case. The lower appellate Court was, therefore, wrong in coming to the conclusion that the point arising in the present case was covered by that decision. No cogent reason is pointed out to us why in the present case the judgment-debtor could not avail of section i of the Limitation Act. Limitation is prescribed by Article 166 and that has got to be read along with section 4 of the Limitation Act.

For the reasons indicated above, we make the rule absolute, set aside the order passed by the lower appellate Court and restore the order passed by the executing Court. In view of the fact that the ground on which this revision application succeeds was not taken in the Courts below, there will be no order as to costs throughout.