AI Structured Summary
Not yet generated for this judgment
Judgment
Mr. Rajah Aiyar''s argument is that the application alone under Order XXI, Rule 89, of the CPC need be made within 30 days as required by
Article 166 of the Limitation Act but the deposit might be made either within the 30 days mentioned in Order XXI, Rule 92, Clause (2), of the
Code of Civil Procedure, or within such further time as the Court might choose to give in virtue of its alleged inherent powers u/s 151 of the Code
of Civil Procedure.
In the first place, it is clear from the decision in Karunakara Menon v. Krishna Menon 27 Ind. Cas. 952: 2 L.W.196 that the ""provision in Order
XXI, Rule 89, is in the nature of an indulgence to the judgment-debtors"" and that ""Courts are bound to see that the provisions of law in this respect
are very strictly conformed to."" That the deposit within 30 days is much more important than the application to set aside has been held in some
cases see Mariappa Annam v. Hari Hara Iyer 22 Ind. Cas. 291 and that even an oral application to sot aside is sufficient and can be presumed
from an affidavit accompanying the deposit, provided the deposit itself is made within 30 days. Mr. Rajah Aiyar''s argument, if accepted, would
make the deposit within 30 days a secondary matter.
Further we are of opinion that the words ""on his depositing"" in Order XXI, Rule 89, of the CPC qualify ""apply"" and that such deposit is a
condition precedent to the making of the application.
Lastly, we hold that the Court has no power to extend the time given by the Code (and not by an order of the Court) for making the deposit and
that the requirements of Order XXI, Rule 92, Clause (2), of the CPC that the deposit should be made within 30 days is not merely directory but
mandatory.
Order XXI, Rule 92, Clause (2), of the CPC is not happily worded. An order allowing an application to set aside the sale is the same thing as
an order setting aside the sale and it is, therefore, superfluous to say that on the allowing of such an application, the Court shall make an order
setting aside the sale.
If, again, the deposit should precede or be contemporaneous with the application, it was unnecessary to prescribe 30 days for the deposit when
30 days are prescribed by the Limitation Act for the application, unless the Legislature intended not to allow to the making of the deposit the
extension of time permitted to applications by the Limitation Act in certain contingencies, such as the Court being closed on the last day of
limitation. However, we are clear that the learned Subordinate Judge was right in his view that the Court had no power to extend the 30 days fixed
in the Code for making the required deposit, as Section 151 of CPC cannot be legitimately invoked for extending periods of limitation and for
overruling Legislative provisions.
We dismiss the appeal with costs.