LexANNAPURNA versus MALLIKARJUN & ANR.
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[2014] 7 S.C.R. 299 ANNAPURNA v. ;., MALLIKARJUN & ANR. (Civil Appeal No. 4469 of 2014) APRIL 11, 2014. [ANIL R. DAVE AND SHIVA KIRT! SINGH, JJ.] CODE OF CIVIL PROCEDURE, 1908: A B 0. 21, r. 89 - Application to set aside sale on deposit- c Period of limitation to make the deposit - Amount deposited on the opportunity given by writ court - Held: Deposit of the requisite amount in the court is a condition precedent or a sine qua non to application for setting aside the execution of sale and such an amount must be deposited within the prescribed 0 time for making the application otherwise the application must be dismissed - Order of High Court directing reconsideration of application under 0. 21, r. 89, set aside - Limitation Act, 1963 - Schedule I - Article 127. The instant appeal arose out of the order of the High E Court allowing the writ petition filed by the judgment- debtor and setting aside the orders of the executing court and the appellate court dismissing his application under 0. 21, r. 89, C.P.C. and remitting the ·matter to the executing court for disposal of the application under 0. F 21, r. 89, CPC, primarily because the judgment-debtor on the opportunity given by the writ Court, had deposited the amount. . Allowing the appeal, the Court HELD: A co.njoint reading of rr.89 and 92 of 0. 21, CPC and Article 127 of the Limitation Act, 1963 makes it clear that although 0. 21 r. 89, CPC does not prescribe any period either for making the application or the 299 G H 300 SUPREME COURT REPORTS [2014] 7 S.C.R. A required deposit, Article 127 of the Limitation Act prescribes 60 days as the period within which such an application should be made. Deposit of the requisite amount in the court is a condition precedent or a sine qua non to application for setting aside the execution of sale B and such an amount must be deposited within the prescribed time for making the application otherwise the application must be dismissed. In the instant case, in absence of required deposit made by the judgment- debtor within the time mandated by law, the High Court C erred in directing for re-consideration of the petition under 0. 21 r. 89, CPC, as such an exercise would be only an exercise in futility because the executing court does not have any option but to reject the petition. Accordingly, the judgment under appeal is set aside. [Paras 7-9) [303- D C-H] E Dadi Jagannadhamn v. Jammlu Ramulu & ors. 2001 (2) Suppl. SCR 60 = (2001) 7 SCC 71; and Ram Karan Gupta v. J.S. Exim Ltd. & Ors. 2012 (12) SCR 683 = (2012) 13 sec 568 - relied on Case Law Referen<:e : 2001 (2) Suppl. SCR 60 2012 (12) SCR 683 relied on /' reliect on Para 5 Para 5 F CIVIL APPELLATE JURISDICTION : Civil Appeal No. G H 4469 of 2014. From the Judgment and Order dated 18.02.2010 of the High Court of Karnataka at Bangalore in WP No. 10550 of 2006. Girish Ananthamurthy (for Vaijayanthi Girish) for the Appellant. S.K. Kulkarni, M. Girish Kumar, Ankur S. Kulkarni for the Respondents. ANNAPURNA v. MALLIKARJUN & ANR. The Judgment of the Court was delivered by SHIVA KIRTI SINGH, J. 1. Leave granted. 301 2. The matter relates to an Execution Proceeding in which A the Executing Court put a house bearing CTS No.1610/B to auction and after rejecting the objections raised by the B judgment-debtor, Respondent no.1 herein, confirmed the Court Sale by issuing Certificate of Sale in favour of the auction purchaser, the Appellant. Against the order dated 18.12.2004 passed by the Executing Court dismissing his application under Order XXI Rule 89 of the. Code of Civil Procedure (CPC) the C judgment-debtor preferred an appeal being Miscellaneous Appeal No.1/2005 before Civil Judge (Sr. Division). That appeal was dismissed on 26. 7 .2006 with a finding that,. the appeal was not maintainable. The judgment-debtor then preferred Writ Petition No.10550 of 2006 before the High Court D of Karnataka, Circuit Bench at Gulbarga to challenge the order of the Executing Court as well as of the Appellate Court. The High Court, by the order under appeal dated 18.2.2010, allowed . the writ petition by quashing the impugned order of the Executing Court and remitting the matter back to the Executing E Court for fresh disposal of judgment-debtor's application under Order XXI Rule 89 of the CPC. 3. The moot question of law raised in this appeal does not require this C.ourt to go into facts in any det
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