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Or.21, Rule 89 CPC and Art.127 of Limitation Act – sale set aside petition by Jdr should be made with in 60 days and should have deposited the sale amount and poundage etc., – High court ignored the settled law and allow the writ – Apex court held that in view of the settled law on the issue as noted above, in this case it must be held that the High court committed grave error of law in not noticing the relevant provisions of CPC and the Limitation Act and in allowing the Writ Petition for re-consideration of the petition under Order XXI Rule 89, CPC. In absence of required deposit made by the judgment-debtor within the time mandated by law, such an exercise would be only an exercise in futility because the Executing Court does not have any option but to reject the petition. In such a situation, the judgment under appeal is set aside and the Appeal is allowed with a cost of Rs.10,000/- (Rupees Ten Thousand) payable by Respondent no.1 to the Appellant.= Annapurna …..Appellant Versus Mallikarjun & Anr. …..Respondents= 2014 ( April. Part ) judis.nic.in/supremecourt/filename=41409

Or.21, Rule 89 CPC and Art.127 of Limitation Act – sale set aside petition by Jdr should be made with in 60 days and should have deposited the sale amount and poundage etc., – High court ignored the settled law and allow the writ – Apex court held that in view of the settled law on the issue as noted above, in  this  case it     must be held that the High court committed grave error of law in  not noticing   the relevant provisions of CPC and  the  Limitation  Act  and  in

allowing the Writ Petition for re-consideration of the petition under  Order XXI Rule 89, CPC. In absence of required deposit made by  the  judgment-debtor  within  the  time mandated by law, such an exercise would be  only  an  exercise  in  futility because the Executing Court does not have  any  option  but  to  reject  the petition.  In such a situation, the judgment under appeal is set  aside  and the Appeal is allowed with a  cost  of  Rs.10,000/-  (Rupees  Ten  Thousand)

payable by Respondent no.1 to the Appellant.=

 

whether the High Court could have  ignored  the  settled

law that  under Article 127 of the Limitation Act, 1963  an  application  to

set aside a sale under Order XXI Rule 89, CPC has  to  be  filed  within  60

days from the date of sale and same is the period for  making  the  required

deposit.

 

A careful perusal of the provisions in Rules 89 and 92 of  Order  XXI,

 CPC and Article 127 of the Limitation Act leaves no manner  of  doubt  that

although Order XXI Rule 89, CPC does not prescribe  any  period  either  for

making  the  application  or  the  required  deposit,  Article  127  of  the

Limitation    Act now prescribes 60 days as the period within which such  an

application  should be made.  

In absence of any separate  period  prescribed

for making the deposit, as per judgment of the  Constitution  Bench  in  the

case of Jammlu Ramulu (supra) the time to make  the  deposit  and  that  for

making the   application would be the same.

8.    In the case of Ram Karan  Gupta  (supra),  it  has  been  held,  after

considering the Constitution Bench judgment and other  relevant  case  laws,

that 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  time  for

making the     application otherwise the application must be dismissed.

9.    In view of the settled law on the issue as noted above, in  this  case

it     must be held that the High court committed grave error of law in  not

noticing   the relevant provisions of CPC and  the  Limitation  Act  and  in

allowing the Writ Petition for re-consideration of the petition under  Order

XXI Rule 89, CPC. 

 In absence of required deposit made by  the  judgment-debtor  within  the  time

mandated by law, such an exercise would be  only  an  exercise  in  futility

because the Executing Court does not have  any  option  but  to  reject  the

petition.  In such a situation, the judgment under appeal is set  aside  and

the Appeal is allowed with a  cost  of  Rs.10,000/-  (Rupees  Ten  Thousand)

payable by Respondent no.1 to the Appellant.

 2014 ( April. Part ) judis.nic.in/supremecourt/filename=41409

ANIL R. DAVE, SHIVA KIRTI SINGH

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4469 OF 2014
[Arising out of S.L.P.(C)No.16312 of 2010]

Annapurna …..Appellant

Versus

Mallikarjun & Anr. …..Respondents

 
J U D G M E N T

 

SHIVA KIRTI SINGH, J.
1. Leave granted.
2. The matter relates to an Execution Proceeding in which the Executing
Court put a house bearing CTS No.1610/B to auction and after rejecting the
objections raised by the 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 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
C.A. @ S.L.P.(C)No.16312/10 …. (contd.)
High Court 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 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
Court to go into facts in any detail. The issue of law raised on behalf
of the Appellant is whether the High Court could have ignored the settled
law that under Article 127 of the Limitation Act, 1963 an application to
set aside a sale under Order XXI Rule 89, CPC has to be filed within 60
days from the date of sale and same is the period for making the required
deposit.
4. On facts, it is sufficient to notice that after success in
O.S.No.26/1969, the decree-holder instituted execution proceedings in
E.P.No.17/1993. The property in question was sold through Court Sale on
7.8.2004. The judgment-debtor filed an application under Order XXI Rule
89, CPC on 3.9.2004 to set aside the Court Sale along with an application
to appoint a Court Commissioner to find out the market value of the
sold property. Decree-holder filed objections and thereafter by different
orders passed on 18.12.2004 the Executing Court rejected the applications
of the judgment-debtor and issued Certificate of Sale in favour of the
auction purchaser. On 15.1.2005, the Executing Court closed the Execution
Petition as fully satisfied. Admittedly, at no point of time, the
judgment-debtor made any deposit as required by Order
C.A. @ S.L.P.(C)No.16312/10 …. (contd.)
XXI Rule 89, CPC before the Executing Court. As noticed earlier, judgment-
debtor’s Miscellaneous Appeal was dismissed as not maintainable. In the
Writ Petition preferred by him, the High Court agreed that Miscellaneous
Appeal was not maintainable but primarily because the judgment-debtor,
on an opportunity given by the Writ Court, had deposited Rs.25,000/- over
and above the amount for which the property was sold, impugned order was
passed to remit the matter back to the Executing Court for fresh disposal
of the application under Order XXI Rule 89 of the CPC with liberty to
the writ petitioner to place available materials before the Executing Court
to show that the value of the property is more than the price obtained in
the Court auction.
6. According to learned counsel for the Appellant, the High Court erred
in ignoring the relevant provisions such as Rules 89 and 92 of Order XXI of
the CPC and Article 127 of the Limitation Act otherwise it would have come
to the only possible conclusion that in absence of required deposit being
made within 60 days, the Executing Court had no option but to reject the
petition under Order XXI Rule 89 of the CPC. In support of his
submission, learned counsel placed reliance upon a recent judgment of this
Court in the case of Ram Karan Gupta v. J.S. Exim Ltd. & Ors. (2012) 13 SCC
568 and a Constitution Bench judgment in the case of Dadi Jagannadham v.
Jammlu Ramulu & Ors. (2001) 7 SCC 71 which has been referred to and
relied upon in the case of Ram Karan Gupta (supra).
7. On the other hand, learned counsel for Respondent no.1, judgment-
debtor, submitted that the High Court has adopted a just and proper
course to
C.A. @ S.L.P.(C)No.16312/10 …. (contd.)
give another chance to the judgment-debtor to prove his objection that the
property sold in the court auction was not valued properly. He submitted
that such a course of action was warranted by the peculiar facts and
circumstances of the case.
7. A careful perusal of the provisions in Rules 89 and 92 of Order XXI,
CPC and Article 127 of the Limitation Act leaves no manner of doubt that
although Order XXI Rule 89, CPC does not prescribe any period either for
making the application or the required deposit, Article 127 of the
Limitation Act now prescribes 60 days as the period within which such an
application should be made. In absence of any separate period prescribed
for making the deposit, as per judgment of the Constitution Bench in the
case of Jammlu Ramulu (supra) the time to make the deposit and that for
making the application would be the same.
8. In the case of Ram Karan Gupta (supra), it has been held, after
considering the Constitution Bench judgment and other relevant case laws,
that 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 time for
making the application otherwise the application must be dismissed.
9. In view of the settled law on the issue as noted above, in this case
it must be held that the High court committed grave error of law in not
noticing the relevant provisions of CPC and the Limitation Act and in
allowing the Writ Petition for re-consideration of the petition under Order
XXI Rule 89, CPC. In
C.A. @ S.L.P.(C)No.16312/10 …. (contd.)
absence of required deposit made by the judgment-debtor within the time
mandated by law, such an exercise would be only an exercise in futility
because the Executing Court does not have any option but to reject the
petition. In such a situation, the judgment under appeal is set aside and
the Appeal is allowed with a cost of Rs.10,000/- (Rupees Ten Thousand)
payable by Respondent no.1 to the Appellant.
……………………………J.
[ANIL R. DAVE]

 

 
……………………………J.
[SHIVA KIRTI SINGH]

New Delhi.
April 11, 2014.

———————–
5

 

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