P.K. UNNI versus NIRMALA INDUSTRIES & ORS.

Citation: [1990] 1 S.C.R. 483 · Decided: 20-02-1990 · Supreme Court of India · Bench: K.N. SINGH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

• 
P.K. UNNI 
v. 
NIRMALA INDUSTRIES & ORS. 
FEBRUARY 20, 1990 
[K.N. SINGH, T. KOCHU THOMMEN AND 
N.M. KASLIWAL, JJ.] 
Order XX! Rule 89 and 92(2)-Jmmovable property sold in 
execution of decree-Period of limitation for making deposit for appli-
cation to set aside the sale. 
In this appeal by special leave brought by the auction-purchaser 
against the Judgment of the Madras High Court the sule question for 
consideration is as regards the period of limitation for making a deposit 
to make an application under Rule 89 of Order XXI of the Civil Proce-
dure Code, 1908 to set aside the sale of immovable property sold in 
execution of a decree. Whether the deposit is to be made within 30 days 
from the date of the sale as required by sub-rule (2) of Rule 92 of Order 
XXI or within 6-0 days from the date of sale as provided in Article 127 of 
the Limitation Act, 1963? 
Following its earlier decision in Thangammal & Ors. v. V.K. 
Dhanalakshmi & Anr. and the decision of this Court in Basavantappa 
v. Gangadhar Narayan Dharwadkar & Anr., the High Court had held 
that Article 127 governed the period of limitation to make a deposit in 
terms of Rule 89. Setting aside the judgment of the High Court on the 
question of limitation, this Court in allowing the appeal, 
HELD: The corr~ct construction of Rule 92(2) of Order XXI of 
the Civil Procedure Code, 1908 leads to the irresistible conclusion that 
the time for making a deposit in terms of Rule 89 of Order XXI is 30 
days, and Article 127 of the Limitation Act, 1963 prescribing the period 
for making an application under Rule 89 has no relevance to the pres-
cribed time for making the deposit. Neither provision has any effect on 
. the other as to time. [489G-H; 490A) 
Basavantappa v. Gandadhar Narayan Dharwadkar & Anr., 
[1986] 4 sec 273, over-ruled. 
Nalinakaya Bysack v. Shyam Sunder Haldar & Ors., [1953] SCR 
533 at 545; Mersey Docks v. Henderson, [1988] 13 App. Cas. 595, 602; 
483 
A 
B 
c 
D 
E 
F 
G 
H 
484 
SUPREME COURT REPORTS 
[1990] 1 S.C.R. 
A 
Crawford v. Spooner, [1846] 6 Morre P.C. 1, 8, 9; Seaford Court 
Estates v. Asher, All E.R., [1949] 2.155 at 164 M. Pentiah & Ors. v. 
'"i: 
Muddala Veeramallappa & Ors., [1961] 2 S.C.R. 295 at 314 Heydon"s 
case (1584) 3 Co Rep 7a: 76 ER 637; Dakshayini & Ors. v. Madhavan, 
AIR 1982 Kerala 126, referred to. 
B 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1308 
of 1990. 
From the Judgment and Order dated 9.12.86 of the Madras High 
Court in A.A.0. No. 421/83. 
c 
K. Parasaran, B. Ramamoorthy and V. Balachandran for the 
Appellant. 
M.R. Narayanaswamy and A.T.M. Sampath for the Respon-
dents. 
D 
The Judgment of the Court was delivered by 
THOMMEN, J. Special leave is granted. 
This appeal arises from the judgment of the Madras High Court 
E 
in A.A.0. No. 421of1983. The sole question that arises for considera-
tion: is as.regards the period of limitation for making a deposit to make 
an application under Rule 89 of Order XXI of the Civil Procedure 
Code, 1908 to set aside sale of immovable property sold in execution of 
a decree. Has the deposit to be made within 30 days from the date of 
sale as required by sub-rule (2) of Rule 92 of Order XXI or within 60 
F 
days from the date of sale as provided in Article 127 of the Limitation 
Act, 1963? 
"""( 
The High Court by the impugned judgment held that Article 127 
governed the period of limitation to make a deposit in terms of Rule 
89. :rn coming to that conclusion the High Court followed its earlier 
G 
dedsion ·in -That~gammal & Ors. v. K. Dhanalakshmi & Anr., AIR 
1981 Mad. 254 and the decision of this Court in Basavantappa v. 
Gangadhar Narayan Dharwadkar & Anr., [ 1986] 4 SCC 273. In the 
latter decision, a Bench of two Judges of this Court held that 
~
Thangammal (supra) was correctly decided on the point and the 
deposit inade within 60 days from the date of sale was well within 
H 
time. 
· 
J " 
P.K. UNNJ v. NIRMALA INDUSTRIES [THOMMEN, J.] 
485 
We shall read the relevant provisions insofar as they are mate-
A 
rial. Rule 89 of Order XXI provides: 
"89. Application to set aside sale on deposit.-(1) Where 
immovable property has been sold in execution of a decree, 
any person claiming an interest in the .property sold at the 
time of the sale or at the time of making the application, or B 
acting for or in the interest of such person, may apply to 
have the sale set aside on his depositing in Court,-
(a) for payment to the purchaser, a sum equal to five per 
cent
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