Thangammal and Others vs K. Dhanalakshmi and Others

Ramanujam, J.—This appeal involves an interesting question of law arising out of two inconsistent provisions, one occurring in the Limitation

Act and the other occurring in the Code of Civil Procedure.

The Appellants herein were the judgment-debtors in Original Suit No. 244 of 1961 on the file of the Sub-Court, Coimbatore. The decree in the

said suits was put in execution in Execution Petition No. 281 of 1977 and the Appellants'' properties had been sold in court auction on 21st

January, 1977 for a sum of Rs. 45,060. The applicants came forward with a petition in Execution Application No. 202 of 1978 on 24th January,

1978 to set aside the sale on depositing the entire decree amount, commission and poundage under Order XXI, Rule 89 of the Code of Civil

Procedure.

The said application for setting aside the sale was opposed by the auction purchaser on the ground that the deposit had been made beyond

thirty days from the date of the sale and, therefore, it was not maintainable. The decree-holder however, did not file any counter opposing the

application. The Court below upheld the objection put forward by the auction-purchaser that as the deposit had not been made within thirty days

from the date of the sale as per order XXI, Rule 92(2) of the application for setting aside the sale under Order XXI Rule 89 cannot be maintained.

The said decision of the lower Court has been challenged in this appeal on the ground that the time for filing an application under Order XXI Rule

89 having been fixed under Article 127 of the Limitation Act, 1963 as sixty days and the application for setting aside the sale and the deposit of the

amount being within the said sixty days, the Court below is in error in dismissing the application as barred by time.

In this case, the sale took place on 21st December, 1977 and the deposit of the entire decree amount, commission and poundage had been

made on 23rd January, 1978 and the application for setting aside the sale has been filed on 24th January, 1978. Before the Court below the

contention on behalf of the auction-purchaser was that notwithstanding the longer period of limitation fixed under Article 127 of the limitation Act

for filing an application to set aside the sale by a judgment-debtor the deposit has to be made within thirty days as provided under Order XXI,

Rule 92(2) and that as the deposit had not admittedly been made within thirty days from the date of the sale, the application is not maintainable.

The Court below took the view that though the filing of an application to set aside the sale on deposit falls under the purview of Order XXI, Rule

89, Order XXI, Rule 92 is the operative provision, that as per Rule 92(2) which is a mandatory provision the deposit has to be made within thirty

days from the date of the sale, that the provision in Article 127 of the Limitation Act is a general provision for filing an application for setting aside

the sale under Order XXI, Rules 89, 90, and 91 and that such a general provision cannot nullify the mandatory provision in Rule 92(2).

In support of its view that Order XXI, Rule 92(2) is a mandatory provision and, therefore, the deposit has to be made within thirty days from

the date of sale, the lower Court has referred to the following two decisions of this Court namely Vannisami Thevar v. Periaswamy Thevar 3 L.W.

221 and Subbammal Vs. P. Gurusamy Thevar and Others, In the first decision a Division Bench of this Court has observed that the provisions of

Order XXI, Rule 89, Code of CPC is in the nature of an indulgence to judgment-debtors and courts are bound to see that the provisions of law

are very strictly conformed to, that the deposit within thirty days is much more important than the application to set aside the sale, that, if the

deposit is made within thirty days even an oral application to set aside the sale is sufficient, that the expression on his depositing in order XXI Rule

89(1) CPC qualifies the word apply"" occurring in that rule and that the requirements of Order XXI, Rule 92(2) of the deposit being made within

thirty days are mandatory and not directory and that the Court had no power to extend the period of thirty days fixed by the Code for making the

deposit. In the second case Subbammal Vs. P. Gurusamy Thevar and Others, it has been held that the provision in Order XXI Rule 85 which

makes it obligatory on the part of the auction purchaser to deposit the full amount of purchase money within fifteen days from the date of the sale is

a mandatory provision and the court has no power to extend the time for deposit of the said purchase money. However, I fail to see how these

decisions will be of any assistance to the Respondents in this appeal. The second decision inferred to above deals with a different. provision in

Order XXI, Rule 85 and it cannot be taken to throw any light on the interpretation of Order XXI Rule 92(2). The first decision though dealt with

the scope of Order XXI, Rule 92(2), the same was rendered at a time when time fixed under the Limitation Act for filling an application for setting

aside the sale under order XXI Rule 89 was also thirty days. Since the time for filing an application for setting aside the sale under Order XXI Rule

89 by a judgment-debtor was thirty days under Article 127 of the Limitation Act of 1963, before its amendment the time for making the deposit

was also taken to be thirty days and the consequence of non-deposit of the amount within thirty days was that the sale has to be confirmed under

Order XXI, Rule 92(1). The said decision is quite consistent and gives proper effect to the provisions contained in Article 127 of the Limitation

Act fixing thirty days as period of limitation for filing an application for setting aside a sale on deposit and the provision in Order XXI Rule 92(2) of

the Code of CPC providing for the consequences of a deposit within thirty days. But the position appears to be different after the Amending Act

CIV of 1976 came into force which has amended Article 127 of the Limitation act by fixing sixty days as the period of limitation for filing an

application under Order XXI Rule 89 . However, order XXI Rule 92(2) which enables the Court to set aside a sale if the deposit is made within

thirty days from the date of the sale has not been amended. It is in the light of these two conflicting provisions it has to be seen whether the

application for setting aside the sale filed in this case beyond thirty 30 days but before sixty days is maintainable as contended for by the

Appellants.

Article 127 of the Limitation Act, 1963 as amended in 1976 is as follows;

Description of Period of limitation. Time from which period

application. begins to run.

(1) (2) (3)

To set aside a sale in sixty days. The date of sale

execution of a decree

including, any such

application by a

judgment-debtor.

Order XXI, Rule 89(1) is in the following terms:

Where immovable proper has been sold in execution of a decree, any person claiming an interest in the property sold at that time of the sale or at

the time of making the application, or acting for or in the interest of such person may apply to have the sale set aside on his depositing the 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,

Rule 92 provides in what circumstances a sale will become absolute or it will be set aside. Rule 92(1) enables the Court to confirm a sale under

certain circumstances. Rule. 92(2) enables the Court to set aside a sale in certain events Rule 92(2) with which we are concerned now is 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 thirty days from the date of sale, for in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or

arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the court

shall make an order setting aside the sale.

The Court below has construed Rule 92(2) as a rule providing a period of limitation of thirty days for making the deposit under Order XXI,

Rule 89 and as that is a special provision fixing a period of limitation for making the deposit in the Code of CPC Code, the period of limitation

prescribed in Article 127 of the Limitation Act for filing an application for setting aside the sale which is a general provision cannot operate. The

question is whether the said view is legally tenable.

On a proper interpretation of Rule 92(2) it is not possible to say that it provides for a period of limitation for making the deposit as has been

held by the Court below. Rule 92(2) merely enables the Court to set aside the sale, if the deposit required to be made under Rule 89 is made

within thirty days from the date of sale. Such a provision cannot be treated as a provision fixing a period of limitation. The result of non-deposit of

the amount within thirty days may and in the dismissal of the application filed under Order XXI, Rule 89 and that will enable the Court to confirm

the sale under Rule 92(1). As already pointed out, the deposit of the amount within thirty days from the date of the sale has been referred to in

Rule 92(2) as the original period of limitation for filing an application under Order XXI, Rule 89 was thirty days under the Limitation Act. But that

period has since been enlarged to sixty days. When under the Limitation Act a judgment-debtor had sixty days for filing an application under Order

XXI, Rule 89, he can deposit the amount even on the 60th day and file the necessary application under Rule 89 To say that not with standing the

enlarged period of sixty days given under Article 127 of the Limitation Act the judgment-debtor has to deposit the amount within thirty days as

otherwise his application for setting aside the sale under Rule 89 cannot be maintained is to bring in the old period of limitation of thirty days for

filing an application under Rule 89. A conjoint reading of Article 127 of the Limitation Act under Order XXI, rules, 89 and 92 will clearly-indicate

that Rule 92(2) merely declare the rights of parties arising as a result of the disposal, of the application under Order XXI, Rule 89. Once a light is

given to the judgment-debtor under Order XXI, Rule 89 to set aside a sale on deposit of an amount by filing an application within sixty days that

right cannot be taken away under Rule 92(2) by insisting on the payment of the amount within thirty days. Obviously the Legislature has

overlooked reference to Thirty days in Rule 92(2) when it enlarged the period of Limitation under the Limitation Act for filing an application under

Rule 89. This appears to be a clear case of Casus Omissus. Even otherwise, the Legislature cannot be taken to have provided two periods of

limitation one for making an application for setting aside a sale under Rule 89 of Order XXI and another for deposit of the amount which is a

condition precedent for making such an application. If Rule 9(2) were to be construed as a provision for providing a limitation for making a deposit

it will mean that though the limitation Act does not contemplate a separate period of limitation for making the deposit contemplated in Rule 89

Order XXI, the Code of Code of CPC has intended to provide a separate period of limitation for making the deposit. As making the deposit is a

condition precedent for filing an application for setting aside a sale under order XXI, Rule 89, the Legislature would not have intended to provide a

separate and different period of limitation for making the deposit, thus in effect, defeating, the object of enlarging the period of limitation from thirty

days to sixty days. It is seen that Article 127 of the Limitation Act was amended enlarging the period of Limitation from thirty days to sixty days

based on the recommendation of the Law Commission in its 54th report which is to the following effect:

An application to set aside a sale on deposit under Order XXI, Rule 89, has to be made within thirty days of the date of sale. It has been, stated

that this period proves to be too short in practice, and often causes hardship inasmuch as the judgment-debtor cannot arrange for moneys within

that time. Banks take a far longer period than one month in sanctioning advances, and it has been suggested that the period should, therefore be

increased. We find some force in this suggestion and are inclined to accept it. No. doubt, the law should take into account the position of the

purchaser also; but, since five per cent of the purchase money has to be paid to him under the rule, as serious prejudice is likely to be caused to

him by an increase in the waiting period.

* * *

Accordingly we recommended that in the Limitation Act, 1963 in the Schedule, in the second column against entry 127, for the words ""thirty days

the words ""sixty days"" should be substituted.

The above recommendation makes it abundantly: clear that the enlargement of the period of limitation from thirty days to sixty days was made as

the period of thirty days fixed earlier was found quite at insufficient for the judgment-debtors to make preparations for arranging funds for effecting

deposit which is a condition precedent for filing an application under order XXI, Rule 89. It is only in the light of the object of the enlargement of

the period of limitation from thirty days to sixty days in Article 127, the scope of Rule 92(2) has to be considered. As already stated, Rule 92(2)

on the fact of it cannot be construed as a provision providing for limitation for making the deposit contemplated in Rule 89, much less as a

provision fixing a period different from the period of limitation prescribed under Article 127 of the Limitation Act. It is well-known that the deposit

contemplated under Rule 89 is a condition precedent to an application under that rule and, therefore, the deposit itself must be within the period of

limitation contemplated by Article 127. If Rule 92(2) is construed literally, then even in a case where the deposit is made within thirty days, but the

application has not been made within thirty days the sale has to be set aide as per that rule: However, it is well established that a sale in execution

can be set aside only, if an application is made for that purpose under Rule 89 within the period of limitation. Thus Rule 92(2) if construed in the

literal sense will enable the Court to set aside the sale once the deposit has been made as contemplated by that rule within thirty days even without

an application. Therefore, such an anomaly can be avoided if we construe Rule 92(2) as an enabling provision and not as a provision fixing a

period of limitation for making the deposit.

Even, if it could be construed as a provision prescribing a period of limitation for making the deposit, I am of the view that it should be read

subject to Article 127 of the Limitation Act which should be taken to be a special Act in the circumstance of this case and not a general provision

as has been construed by the Court below,

Even, assuming that Rule 92 is a provision fixing the period of limitation for making a deposit which is a condition precedent for filing an

application under Rule 89, still, in so far as it is inconsistent with the provision in Article 127 of the limitation Act, it should give way. Generalia

specialibus non-deregant. (General provision do not derogate from special provisions.) What is a general statute and what is a special statute is

often a question of difficulty to solve in most cases, but the classification has to be made with reference to the context in each case and the subject-

matter dealt with by each statue. For most Acts can be classed as general Acts from one point of view and special Acts from another. Having

regard to the preambles to the two Acts namely the Code of CPC and the Limitation Act, it may be taken that in the particular context the

provision of the Limitation Act should be taken to be a special enactment and the provision in the Code of Code of CPC should be taken to the

general. The Code of CPC deals with the procedure of the Courts and the Limitation Act deals with the periods of limitation for suits and other

proceedings. Hence in the matters of limitations, the Limitation Act is to be taken as a special Act and the Code of CPC can only be taken to be a

general Act. It is well-established rule of construction that when there is repugnance or inconsistency between at general enactment and a special

enactment, the latter must prevail over the former and the former must yield in favour of the latter to the extent of repugnancy. Here admittedly

there is a conflict between Article 127 of the Limitation Act and Rule 92(2) of Order XXI of the Code of Civil Procedure. Article 127 is a special

later law while Rule 92(2) is the earlier general law and, therefore, former must prevail over the latter and the latter must give way to the former.

Therefore the view taken by the court below that Article 127 of the Limitation Act is a general provision and, therefore, it, should be subject to the

special provision in order XXI, Rule 92(2) cannot be sustained.

In this view of the matter both the deposit and the application for setting aside the sale under Order XXI, Rule 89 having been made within

sixty days as prescribed in Article 127 of the Limitation Act, the application should be taken to be within time. The appeal is, therefore, allowed

and the application for setting aside the sale will stand allowed as the amount deposited has not been questioned as deficient in any manner. There

will, however, be no order as to costs.