Holding

The limitation for an application to set aside a sale in execution, including the deposit under Rule 89, is sixty days as per the amended Article 127 of the Limitation Act, 1963, rendering the sale liable to be set aside despite the inconsistency with Rule 92(2).

Summary

The auction of a judgment-debtor's property was held on 26 July 1985 and the highest bid was accepted. The judgment-debtor deposited the bid amount on 29 August 1985 and filed an application under Order XXI Rule 90 to set aside the sale, followed by another application under Rule 89 on 6 September 1985 with the balance deposit. The auction-purchaser objected, arguing that the deposit required by Rule 89 was not made within the 30‑day period prescribed by Order XXI Rule 92(2), and therefore the sale should be confirmed. The Supreme Court examined the interplay between Order XXI Rule 92(2) of the CPC and the limitation period under the Limitation Act, noting that the Act had been amended by Act 104 of 1976 to extend the limitation from 30 to 60 days. The Court held that while both application and deposit must be made within the period prescribed by the Limitation Act, the current statutory language of Rule 92(2) is inconsistent and requires legislative amendment. Since the judgment‑debtor complied with the 60‑day limitation, the sale was liable to be set aside, and the Special Leave Petition was dismissed.

Issues considered

Whether the deposit required under Order XXI Rule 89 must be made within 30 days of the sale as per Rule 92(2) of the CPC.
Whether the limitation period for filing an application to set aside a sale in execution is 30 days or 60 days after the amendment of the Limitation Act, 1963.
Whether the provisions of Order XXI Rules 89 and 92(2) of the CPC are consistent with Article 127 of the Limitation Act, 1963.

Legislation cited

Act 104 of 1976 (Amendment to Limitation Act)
Code of Civil Procedure, 1908s. Order XXI Rule 89, s. Order XXI Rule 90, s. Order XXI Rule 91(1), s. Order XXI Rule 92(2)
Code of Civil Procedure (Amendment) Act, 1976s. s. 72
Limitation Act, 1908s. Art. 166
Limitation Act, 1963s. Art. 127

Subjects

sale in executionsetting aside saleCPC Order XXILimitation Actdeposit requirementRule 92(2)amendmentspecial leave petition

Judgment

A

BASAVANTAPPA
v.
GANGADHAR NARAYAN DHARWADKAR & ANR.
B
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-
c 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.
D ....
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,
E 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
F required by r. 89 not having been made within 30 days of the date of the I
sa.le as required by r. 92(2) of the Code, the sale was liable' to be con- .~
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,
G
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

H 2. The limitation prescribed for an application under O.XXI, r.

734
BASAVANTAPPA v. G.N. DHARWADKAR [SEN,J.] 7J5

· 89. was 30 days from the date of sale under Schedule I, Art. 166 of the A
~ 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
B
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]
c

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
.D
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]
F.
Thangammal & Ors. v. K. Dhanalakshmi & Anr., AIR 1981 Mad.
254, approved.

CIVIL APPELLATE JURISDICTION: Special Leave Peti-
tion No. 8862of1986
F
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. •
G
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
H
736 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 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
B 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:

c "92(2). Where such application is made and allowed, and
where, in the case of an application under rule 89, the deposit
required by that rule is made within thirty days from the date
)
'
-
of sale, or in cases where the amount deposited under Rule 89
jg·found to be dificient owing to any clerical or arithmetical
mistake on the part of the depositor and such deficiency has
D
been made good within such time as may be fixed by the
Court, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of
the application has been given to all persons affected
thereby."
E
The failure to deposit the am011nt entails confirmation of sale'
under O.XXI;r. 91(1) and thereupon the sale becomes absolute. The
limitation prescribed for an application under O.XXI, r. 89 was thirty
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. The .,(
F words "may apply to have the sale set aside on his depositing in Court"
etc. show that not only the application, but also the deposit, should be
made within thirty days from the date of sale. It is not enough to make ~
the application within thirty days. Nor is it enough to make the deposiY
within thirty days. Both the application and the deposit must be made
within thirty days from the date of sale. Art. 127 of the Limitation Act,
G 1963 has now been amended by Act 104 of 1976 and the words 'sixty
days' have now been substituted for the words 'thirty days'. As a result
of the amendment, the limitation for an application to set aside a sale
in execution of a decree, including any such application by a judgment-
debtor under O.XXI, r. 89 or r. 90 is therefore sixty days now. Such
being the law, there is need for an appropriate amendment of sub-r.
H
BASAVANTAPPA v. G.N. DHARWADKAR [SEN, J.] 737

(2) of r. 92 of the Code. Under O.XXI, r. 89 as it now exists, both the A
·~ application and the deposit must be made within thirty days of the
sale. The failure to make such deposit within the time allowed at once
attracts the consequences set forth in sub-r. (2) of r. 92. This is an
unfortunate state of things and Parliament must enact the necessary
change in law. B
In the present case, the auction was held cin July 26, 1985. The
'i decree holder brought to sale fa execution of a money decree for
Rs.21,948:45p., the property of judgment-debtor no. 1 comprised of a
house and open site appurtenant thereto. The highest bid of Rs.22,500

-
I

'( offered by the auction-purchaser was accepted and the bid was
knocked down in his .favour. The executing Court fixed the case for c
confirmation of sale on September 30, 1985. In the meanwhile,
judgment-debtor no. 1 deposited Rs.22,000 on August 29, 1985 to-
wards payment of the decretal amount together with an application
-< under O.XXI, r. 90 read with s. 151 of the Code for setting aside the
sale. Again, on September 6, 1985 he made another application D
purporting to be under O.XXI, r. 89 read withs. 151 of the Code and
made a deposit of the balance amount. The auction-purchaser
objected to the entertainment of the application contending inter alia
that the deposit required by r. 89 not having been made within thirty
days of the date of sale as required by r. 92(2) of the Code, the sale was
)...- liable to be confirmed under sub-r. (1) thereof. It is undisputed that
E
the judgment-debtor has deposited the entire decretal amount to-
gether with 5% of the purchase money by way of commission to the
petitioner-auction-purchaser. The Principal Munsif, Dharwar by his
order dated October 4, 1985 overruled the objection raised by the
"' petitioner. A learned Single Judge (Kulkarni, J.) by his judgment
j dated March 26, 1986 declined to interfere with the order of the
learned Munsif setting aside the sale. The learned Judge relying upon ·
F
the decision of the Madras High Court in Than gamma/ & Ors. v. K.
~ Dhanalakshmi & Anr., AIR 1981 Mad. 254 held that the provisions of
O.XXI, rr. 89 and 92(2) of the Code and that of Art. 127 of the
Limitation Act should receive a harmonious construction. In that
view, the learned Judge held that the judgment-debtor no. 1 having
G
deposited the decretal amount' together with 5% of the purchase
money and having made the application under O.XXI, r. 89 of the
Code 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 be set aside. The
learned Single Judge has brought about the inconsistency between
sub-r. (2) ofr. 92 of O.XXI of the Code and Art. 127 of the Limitation
. '
H
738 SUPREME COURT REPORTS [19861 3 S.C.R.

A Act and suggested that steps should be taken to remove this incon-
sistency.-We fully_ endorse the view expressed by the learned Single
Judge.
r-
In the result, the' special leave petition must fail and is
dismissed.
B
A.P.J. Petitipn dismissed.
)'-'

•
j
-
y
..