Mir Hussain Ali Khan vs Gopikishan and Others

This is an appeal on behalf of the Defendant in execution proceedings. An interesting question of law as to the application of Article 166, Limitation Act, has been raised. The facts are that the property in dispute was sold in auction under the orders of the Court on the 16th of Thir, 1358 P., and the petition to set aside the sale dated 10th Mehir 1358 F., was filed in Court on 30th Mehir, 1358 F. This petition was clearly beyond 30 days and the lower Court applying Article 166, Limitation Act, dismissed the same as time-barred.

In this appeal, the learned Advocate for the Appellants argued that the petition dated 10th Mehir 1358 F. should be construed as one u/s 47, Code of Civil Procedure, and as such the provisions of Article 181, and not Article 166, Limitation Act, will be applicable. He has cited-- Nirode Kali Roy Choudhury and Another Vs. Rai Harendra Nath Choudhury and Another, . In our opinion, that ruling is not applicable.

He also relied upon-- Hafez Uzir Ali Vs. Nasimannessa Bibi and Others, , ''but that view'' is no longer good. The wording of Article 166 is very clear. It relates to all applications under the CPC to set aside a sale in execution of a decree including any such application by a judgment-debtor. It is clear that the present application of the judgment-debtor was for the purposes of setting aside the sale in execution proceedings. Whether the sale is sought to be set aside under the provisions of Section 47 or under the provisions of Order 21, Rule 90, the fact of setting aside the sale is common; hence it would cover, in our opinion, the petition purported to have been submitted u/s 47, Code of Civil Procedure.

We are supported in our view by a judgment of the Full Bench of the Lahore High Court in--Gauri v. Ude AIR 1942 Lah 153 (C), in which it has been held that an objection u/s 60, Code of Civil Procedure, to the sale of the property falls within the purview of Section 47 and will have to be decided by the executing Court, and that under Order 21 Rule 92, it is clear that after the sale is effected the Court does not contemplate any objection to the sale being raised except those covered by Rules 89, 90 and 91. With regard to Section 47 it has been observed that an application for setting aside the sale u/s 47 is governed by Article 166, Limitation Act, and that the judgment-debtor cannot ignore the auction sale on the ground that the Court had no jurisdiction to sell the property.

This is also the view of the Patna High Court. In- Babu Upendra Nath Basu Vs. Pandaya Gulab Sarkar, a Bench of six Hon''ble Judges held that Order 21 Rule 90 is the rule of procedure and prescribes one of the modes in which an auction sale may be set aside. The argument of the learned Advocate for the Appellants that the sale is a nullity cannot be conceded. There is no objection as to the reason why the sale is regarded as a nullity has been adduced before us.

This is also the view of the Nagpur High Court in-- AIR 1948 52 (Nagpur) . See also-- Periyannan Kaladi Vs. Ramaswami Pallavarayan, . In view of the above, we are of the opinion, that Article 166 is applicable in this case and not Article 181, Limitation Act.

The learned Advocate for the Appellants argued that the lower Court was wrong in putting the property to sale inasmuch as that Court had no jurisdiction to sell the property as the Dar-ul-Khaza Court had ordered a stay of sale. In the first'' place it is not clear how the Dar-ul-Khaza Court was entitled to issue a stay order. It is contended on behalf of the decree-holder that he was not a party in that Court. Moreover, the objection to the sale on the ground of existence of the stay order is of a nature which should be raised under Article 168, Limitation Act, and as the application is not within time the objection cannot be considered. We, therefore, dismiss this appeal with costs.