MOHAN LAL versus SHRI HARI PRASAD YADAV AND ORS.

Citation: [1994] SUPP. 1 S.C.R. 107 · Decided: 13-05-1994 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed
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Judgment (excerpt)

MOHAN LAL 
A 
v. 
SHRI HARi PRASAD YADAV AND ORS. 
MAY 13, 1994 
B 
(KULDIP SINGH AND YOGESHWAR DAYAL, JJ.] 
Civil Procedure Code, 1908 : .Order 21, Rule 8'>-Application 
under-l:imitation period-Held : Gov_emed by Article 127 of the Limitation 
Act-Executing Coult has no jurisdiction to enteltain application after period 
of limitation prescribed by Article 127-Section 5 of Limitation Act and Sec-
C · 
tion 148 of Civil Procedure Code, 1908-Held inapplicable. 
An auction sale took place on 25.5.81. The objections 61ed by the 
judgment debtor under Order 21 Rule 90 of the Code of Civit·Procedure, 
1908 were dismissed by the Executing Court and the appeal filed against D 
the order of the Executing Court was dismissed by the High Court by Its 
order dated 21.12.83. However, an application filed under Order 21 Rule 
, 89 for setting aside the sale was alliiwed by the Executing Court. The 
auction purchaser preferred revision against this order. By its order dated 
26.4.83, the ffigh Court held that the executing court had no jurisdiction E 
to entertain the application under Order 21 Rule 89 as it was time barred 
under Article 127 of the Limitation Act. Against the orders dated 21.12.83 
and 26.4.83 special leave petition/appeal was referred in this court. 
Dismissing the petition and appeal, this Court 
HELD : An application to set aside sale under Order 21 Rule 39· of 
the Code of Civil Procedure is governed by Article 127 of the Limitation 
Act. Section 5 of the Limitation Act has no application on its own wordings. 
Again Section 148 of the Civil Procedure Code would not be applicable to 
F 
the present case for the simple reason that the time for making au 
application under Order 21 Rule 89 of the Code is not fixed by the Court: G 
'Therefore, the High Court was right in coming to the conclusion that the 
executing court had no jurisdiction whatsoever to entertain the application 
under Order 21 rule 89 of the Code after the period of limitation 
prescribed by Article 127 of the Limitation Act. There is DO reason to 
interfere with the order passed by the High .Court. [110-C, G, H, lll·A·D] H 
107 
108 
SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R. 
A 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2647 of 
B 
c 
1984. 
From the Judgment and Order dated 26.4.83 of the Patna High Court 
in C.R. No. 984 of 1982. 
S.S. Javali, R.P. Singh, R.K. Khanna and S.K. Sinha for the Appel-
!ant. 
K.K. Gupta and Shankar Divate for Mrs. Lalitha Kaushik for the 
Respondents. 
Th~ Judgment of the Court was delivered by 
YOGESHW AR DAYAL, J. This appeal is directed against the judg-
ment of the Single Judge of the High Court of Patna dated 26th April, 1983 
whereby the Single Judge set aside an order dated 28th May, 1982 passed 
D by the executing court in Execution Case No. 7 of 1977 while giving the 
benefit of Order 21 rule 89 of the Code of Civil Procedure (hereinafter 
referred to as 'the Code') to the judgment debtor. 
Undoubtedly the sale took place on 25th May, 1981 and even the 
E 
objections, which were filed for setting aside the sale under Order 21 rule 
90 of the Code were dismissed on 4th May, 1982. An application purporting 
to be under Order 21 rule 89 of the Code was filed on 28th May, 1982. It 
F 
· may be mentioned that even an appeal has been filed against the order of 
the executing court dated 4th May, 1982 dismissing the objections to the 
sale filed under Order 21 rule 90 of the Code. After the dismissal of the 
objections under Order 21 after rule 90 of the Code the executing court 
granted time for moving the High Court till 22nd May, 1982 and the appeal 
filed by the appellant against the order of the executing court dismissing 
objections under Order 21 rule 90 of the Code stood dismissed on 21st 
December, 1983. The said order is also under challenge before this Court 
G in Special Leave Petition (Civil) No. 8523 of 1985 and is being disposed of 
separately. 
As stated above the application purporting to be under Order 21 rule 
89 of the Code for setting aside the sale was filed on 28th May, 1982 
H which was granted by the executing court on the same date by the following 
MOHAN v. H.P. YADAV[DAYAL,J.] 
109 
order: 
A 
"28.5.82 
Order 
The Jodgment-debtor, has placed before me, has since recoin-
B 
cided to his fate after exhausting all the processes, at his command 
and is now ready to deposit the decreetal amount and he is ready 
to deposit another Rs. 5000 <)lld undertakes to deposit the remain-
ing
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