LexBASAVANTAPPA versus GANGADHAR NARAYAN DHARWADKAR & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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BASAVANTAPPA
v.
GANGADHAR NARAYAN DHARWADKAR & ANR.
SEPTEMBER 10, 1986
[A.P. SEN AND B.C. RAY, JJ.]
Civil Procedure Code, 1908-0rder 21Rule92(2)-Sale in execu-
tion of decree-Setting aside of-Application and deposit of amount-
Period of limitation-Amendment-Necessity for.
Limitation Ac~ 1963-Article 127-Application for setting aside
sale-Limitation period-Sixty days-Necessity for amendment of Order
21Rule92(2) CPC.
The auction of the property of judgment-debtor no. 1, in execu-
tion of a money decree, was held on .July 26, 1985. The highest bid of
Rs.22,000 offered by the auction-purchaser was accepted. The case for
confirmation of sale was fixed on September 30, 1985. In the mean-
while, judgment-debtor no. 1 deposited the bid amount on August 29,
1985 together with an application under O.XXI, r. 90 read withs. 151
of the Civil Procedure Code for setting aside the sale. On September 6,
1985, he made another application under O.XXI r. 89 read withs: 151
of the Code and made a deposit of the balance amount.
....
The objection raised by the auction-purchaser that the deposit
required by r. 89 not having been made within 30 days of the date of the
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sa.le as required by r. 92(2) of the Code, the sale was liable' to be con-
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firmed under sub-r. (1) thereof, was overruled by the Principal Munsif.
This order was upheld by the High Court.
Dismis.mlg the SLP, this Court,
HELD: 1. Under O.XXI, r. 89 as it now exists, both the applica-
tion and the deposit must be made within 30 days.of the sale. The failure
to make such deposit within the time allowed at once attracts the conse-
quences set-forth under sub-r. (Z) ofr. 92. [737 A-Bl
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2. The limitation prescribed for an application under O.XXI, r.
734
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BASAVANTAPPA v. G.N. DHARWADKAR [SEN,J.]
7J5
· 89. was 30 days from the date of sale under Schedule I, Art. 166 of the
~ Limitation Act, 1908, now replaced by Art. 127 of the Limitation Act,
1963. Art. 127 has now been amended by Act 104 of 1976 and the words
'sixty days_' have been substituted for the words 'thirty days'. [736F-G]
3. As a result of this amendment, the limitation for an application
to set aside a sale in execution of the decree including any such applica-
tion by a judgment-debtor under O.XXI, r. 89 or r. 90 is, therefore,
'"{
sixty days now. [736G]
4. Sub-r. (2) of r. 92 of O.XXI of the Code is inconsistent with
Art. 127 of the Limitation Act. The Parliament must enact the neces-
sary change in law for an appropriate amendment of sub-r. (2) of r. 92
of the Code. [737A-B]
In the instant case, the judgment-debtor no. 1 having deposited
the decretal amount together with 5% of the purchase money and hav-
ing made the application under O.XXI, r. 89 within sixty days of the
sale i.e. within the period as provided by Art. 127 of the Limitation Act,
the sale was liable to he set aside. [737G-H]
·
5. The provision ofO.XXI, rr. 89 and 92(2) of the Code of Civil
Procedure and that of Art. 127 of the Limitation Act 1963, should
receive harmonious construction. [737F-G]
Thangammal & Ors. v. K. Dhanalakshmi & Anr., AIR 1981 Mad.
254, approved.
CIVIL APPELLATE JURISDICTION: Special Leave Peti-
tion No. 8862of1986
From the Judgment and Order dated 26.3.1986 of the Kamataka
High Court in C.R.P. 3084 of 1985.
Padmanabha Mahale, K.K. Gupta and Mrs. Leelawati Mahale
for the Petitioner.
•
The Order of the Court was delivered by
SEN, J. Iri this special leave petition the short point involved is
·,whether by reason of sub-r. (2) of r. 92 of Order XXI of the Code of
Civil Procedure. 1908, the deposit required by r. 89 not "having been
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736
SUPREME COURT REPORTS
[1986] 3 S.C.R.
made within thirty days from the date of sale, the application made by
the judgment-debtor was not maintainable. Sub-r. (2) of r. 92 has been
amended bys. 72 of the Code of Civil Procedure (Amendment) Act,
1976 by adding the words "the deposit required by that rule is made
within thirty days from the date of sale'', the following "Or in cases
where the amount deposited under rule 89 .............. within such
time as may be fixed by the Court" to prevent any controversy as to
the power of the Court to extend the time to make good the deficit.
Unfortunately, the words added speak of the deficiency owing to 'any
clerical or arithmetical mistake' on the part of the depositor. The
amended r. 92(2) now reads:
'
"92(2). Excerpt shown. Read the full judgment & AI analysis in Lexace.