BANDA CHINNA SUBBARAYUDU & ORS. versus THAILAM VISHANATHA RAO & ANR.

Citation: [2009] 15 S.C.R. 470 · Decided: 27-10-2009 · Supreme Court of India · Bench: ALTAMAS KABIR, CYRIAC JOSEPH · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 15 (ADDL.) S.C.R. 470 
A 
BANDA CHINNA SUBBARAYUDU & ORS. 
B 
v. 
THAILAM VISHANATHA RAO & ANR. 
(Civil Appeal No. 7153 of 2009) 
OCTOBER 27, 2009 
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] 
Code of Civil Procedure, 1908: 
c 
Or. 21, r.89 - Execution proceedings - Application by 
judgment-debtors for setting aside the sale - Rejected by 
courts below as barred by time - Plea of judgment-debtors 
that they were prevented from filing application because of the 
stay of execution proceedings on the application of a third 
0 party, rejected - HELD: Whether the stay of the execution 
proceedings was obtained by the judgment-debtors or by any 
other person is hardly relevant except to decide whether the 
judgment-debtors could have taken any steps in the 
proceedings which were stayed - If the period b.etween the 
E date of granting the stay of the execution proceedings and the 
date when the stay was vacated is excluded, then the steps 
taken by the judgment-debtors thereafter under Or.21, r.89 
CPC would be in time - Since the judgment-debtors were 
prevented by stay order from taking any further steps in the 
execution proceedings, they would be entitled to the benefit 
F of the said period and the same has to be excluded while 
considering the question of limitation as prescribed under 
Article 127 of the Schedule to the Limitation Act - Order of 
High Court, so far as it relates to the question of limitation and 
affirming the view of lower courts, set aside - Executing court 
G would proceed with the application filed by judgment-debtors 
under Or.21, r.89 and dispose of the same at an early date -
Limitation Act, 1963 - Schedule - Article 127. 
470 
H 
,.-
BANDA CHINNA SUBBARAYUDU & ORS. v.THAILAM 471 
VISHANATHA RAO & ANR. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
A 
• 
.. , 
) 
7153 of 2009 . 
From the Judgment & Order dated 28.3.2008 of the High 
Court of Judicature, Andhra Pradesh at Hyderabad in Civil 
Revision Petition No. 4778 of 2007. 
B 
Viswanatha Shetty, M. Vijaya Bhaskar, Vijay Kumar for the 
Appellants. 
V. Sridhar Reddy, Vardharajulu, V.N. Raghupathy for the 
Respondents. 
c 
The following Order of the Court was delivered 
ORDER 
1. Leave granted. 
D 
2. This appeal is directed against the judgment and order 
dated 28th March, 2008, passed by the Andhra Pradesh High 
Court in Civil Revision Petition No. 4778 of 2007, dismissing 
the Revisional Applications, which had been filed by the 
E 
appellants herein. 
3. The appellants suffered a decree for recovery of money 
in O.S. 458/98, in the court or Principal Junior Civil Judge, 
.. 
Proddatur. Pursuant to the said decree, the respondent No.1 
herein, who is the plaintiff-decree-holder, filed Execution 
F 
·Proceedings, 352 of 2000, for sale of the property indicated 
.in the said proceedings. On 25th November, 2003, the sale 
was conducted and the property in question was sold to the 
1 second respondent. On the same date, in an appeal filed by 
one ·Chennakkagari Ravindranath Reddy, being A.S. No. 10/ 
G 
2003, the said Execution Proceedings No. 352/2000 were 
stayed. 
4. Subsequently, in the said Execution Proceedings the 
appellants/judgment-debtors filed an application under Order 
H 
' 
472 SUPREME COURT REPORTS (2009) 15 (ADDL.) S.C.R. 
A 
21 Rule 89 of the C.P.C. to set aside the sale, which had been 
held on 25th November, 2003. The respondent No.1 herein filed 
objection to the said application for setting aside the sale 
mainly on two grounds, namely, (1) that the deposit made by 
the judgment-debtor was less than what was required to be 
B deposited under Order 21 Rule 89 of the Code; and (2) that 
the application had been filed well beyond the period of 
limitation prescribed under Article 127 of the Limitation Act. 
. 5. The application filed by the appellant/judgment-debtor 
was dismissed by the Executing Court on both grounds. Even 
C in appeal, the said order was confirmed. When the matter was 
taken to the High Court, it found in favour of the appellant as 
far as the amount of deposit is concerned. However, the High 
Court affirmed the order of the Executing Court, as well as of 
the Appellate Court, on the question of limitation. Aggrieved 
D thereby, the appellants have preferred the instant appeal. 
6. Appearing in support of the appeal, Mr. Shetty, learned 
senior counsel, submitted that none of the courts below had 
takeri into account the fact that in view of the stay obtained by 
E the said Chennakkagari Ravindranath

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