DADI JAGANNADHAMversusJAMMULU RAMULU AND ORS.

A                             DAD! JAGANNADHAM
                                          v.
                         JAMMULU RAMULU AND ORS.

                                 AUGUST 23, 2001

B            (DR. A.S. ANAND, C.J., K.T. THOMAS, R.C. LAHOTI,
                N. SANTOSH HEGDE AND S.N. VARIA VA, JJ.]


          Code of Civil Procedure, 1908/Limitation Act, 1963:

c          Order 21, Rules 89 and 92(2)/Article I 27-Applicationfor setting aside
    sale-Period of limitation to make deposit under Rule 92(2)-Held, an
    application under Order 2 I, Rule 89 can be made within 60 days from the
    date ofsale, as provided under Article I 27 ofLimitation Ai:t, and as no period
    for making deposit is prescribed under Rule 92(2), deposit can also be made
D    within 60 days from the date of sale.

          Interpretation of Statutes:

          Construction of statute-Held, Court must, as far as possible adopt a
    construction which will carry out the obvious intention of legislature-Court
E   could not add words to a statute or read words into it which are not there,
    especially when literal reading produces an intelligible· result.

           In execution of a decree, sale of certain property of respondent,
    judgment-debtor, was held on 22.11.1982. An application under Order XXI,
    Rule 89 of the Code of Civil Procedure, 1908 for setting aside the sale was
F   tiled on 21.1.1983 i.e. on 59th day after the sale, and the prescribed amount
    was also deposited. The execution court dismissed the application on the
    ground that the deposit was not made within 30 days as prescribed under
    Order XXI Rule 92(2), CPC. The appeal tiled by the judgment-debtor was
    allowed and the sale was set aside. The revision petition tiled by the decree-
G   holder was rejected by the High Court. The High Court relied upon a
    judgment of this Court in the case of Basavantappa v. Gangadhar Narayan
    Dharwadkar and Anr. and held that the judgment-debtor should be given the
    benefit of enlarged period of limitation under Article 127 of the Limitation
    Act, 1963 whereunder the time for tiling an application under Order XXI,
    Rule 89 was extended upto 60 days. Aggrieved, the decree-holder tiled the
H   present appeal.
                                          60
               DAD! JAGANNADHAM v. JAMMULU RAMULU                             61
       The appeal was listed bef?re a three Judge Bench, which did not agree        A
with the view expressed by another three-Judge Bench of this Court in P.K
Unni's case*. In P.K. Unni's case it was noted that the time allowed for making
a deposit in terms of Order XXI, Rule 92(2) CPC was 30 days whereas Article
127 of the Limitation Act prescribed a period of 60 days for making an
application under Rule 89. It was held that Order XXI Rule 92(2) CPC and            B
Article 127 operated in different fields and that there was no repugnancy
between the two. It was held that even though the period was enlarged under
Article 127, Limitation Act, that period had no bearing on the time allowed
for making a deposit. As the three Judge Bench, hearing this appeal, did not
agree with the reasoning in P.K. Unni's case, they referred the appeal to a
five Judge Bench. Accordingly, the appeal was heard by the five-Judge Bench         C
on the question : whether the period of limitation for making deposit in order
to file an application to set aside .sale of immovable property under Order
XXI, Rule 89 CPC is 30 days from the date of sale (being the period mentioned
in Order XXI, Rule 92(2) CPC or 60 days from the date of sale as prescribed
in Article 127 of the Limitation Act.
                                                                                    D
         Dismissing the appeal, .the Court

       HELD : I. 1 An application under Order XXI, Rule 89 of Code of Civil
Procedure, 1908 can be made within the period prescribed under Article 127
of the Limitation Act, 1963, i.e. within 60 days from the date of the sale unless
there was a period prescribed for making a deposit. In the absence of a             E
prescribed period the time to make the deposit would be the same as that for
making the application. This is so because if an application is made beyond
the period of limitation, then a deposit made at that time or after that period
would be of no use; as no period for making a deposit was prescribed under
Order XXI, Rule 92(2). The deposit would also be made within 60 days from           F
the date of the sale. The view expressed in P.K. Unni's case* that Order XXJ,
Rule 92(2) prescribes a period of limitation for making a deposit is not correct.
                                                          (66-D-E; 69-H; 70-AI

      P.K. Unni v. Nirmala Industries and Ors., (199012SCC378, overruled.
                                                                                    G
      Basavantappa v. Gangadhar Narayan Dharwadkar and Anr., 1198614 SCC
273 and Thangammal and Ors. v. K. Dhanalakshmi and Anr., AIR (1981) Mad.
254, referred to.

     Pathumanakutty etc. v. Thekkechalil Kathiyumma and Anr. etc., AIR (1990)
Kerala 286 and The Court Liquidator v. Bimalendu Das and Ors., AIR (1985)           H
    62                        SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A   Cal. 382, cited.

           1.2. The object and intention in amending Article 127 of the Limitation
    Act was to extend time to make deposit. It cannot be said that Order XXI,
    Rule 92(2) CPC and Article 127 of the Limitation Act operate in different
    fields. There is no anomaly and there are no different periods of limitation
B   for making deposits and/or nling an application for setting aside the sale. It
    is by virtue of Order XXI; Rule 89 that an application for setting aside a sale
    and a deposit can be made, but it does not prescribe any period within which
    the application is to be made or deposit is to be made. Order XXI, Rule 92(2)
    Is not prescribing any period of limitation within which the deposit has to be
C   made. All that Order XXI, Rule 92(2) provides is that if the deposit is made
    within 30 days from the date of sole and an application is filed then the Court
    would have no discretion but to set aside the sale. That does not mean that if
    the deposit is made after JO days the Court could not entertain the application.
    If the deposit is made beyond the period of 30 days, but within the period of
    60 days, then it will be within the discretion of the Court whether or not to
D   grant the application. [69-D-G[

           2. The settled principles of interpretation are that the Court must
    proceed on the assumptiott th11t the legislature did not make a mistake and
    that it did what it intended to do. The Court must, as far as possible, adopt a
    construction which will carry out the obvious intention of the legislature.
E   Undoubtedly if there is a defect or an omission in the words used by the
    legislature, the Court would not go to its aid to correct or make up the
    deficiency. The Court could not add words to a statute or read words into it
    which are not there, especially when the literal reading produces an intelligible
    result. [67-G-H; 68-A[
F
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5639 of
    2001.

         From the Judgment and Order dated 1.2 .90 of the Andhra Pradesh High
    Court in C.R.P. No. 2786 of 1983.
G
            P.S. Narasimha, P. Sridhar and Guntur Prabhakar for the Appellant.

            Sarvesh Kr. Bisaria and K.R." Nagaraja for the Respondents.

            The Judgment of the Court was delivered by

H           S. N. VARIA VA, J. I. Leave granted.
     DAD! JAGANNADHAM v. JAMMULU RAMULU [S.N. VARIAVA, J.]                   63

      2. The question raised in this Appeal is whether the period of limitation    A
for making deposit, in an application to set aside sale of immovable property
under Order XX! Rule 89 of the Code of Civil Procedure, is 30 days from
the date of sale (being the period prescribed in Order XX! Rule 92(2) C.P.C.)
or 60 days from the date of sale (as prescribed in Article 127 of the Limitation
Act).
                                                                                   B
       3. Briefly stated the facts are as follows: On 25th February, 1980 a
decree was obtained in a suit based on a promissory note executed on 21st
January, 1972. That decree was put into execution and the property of the
Judgment-debtor was attached and put up for sale. The sale was held on 22nd
November, 1982.                                                                    C
      4. On 21st January, 1983 i.e. on the 59th day after the date of sale, an
application was filed under Order XX! Rule 89 C.P.C. and the prescribed
amount was also deposited.

      5. On I Ith March, 1983 the executing Court dismissed the application        D
on the ground that the deposit was not made within 30 days as prescribed
under Order XXI Rule 92(2) C.P.C. The Judgment-debtor filed an Appeal
which was allowed on 3rd September, 1983. The Order of the executing
Court was set aside. The application of the Ju,dgment-debt9r was allowed and
the sale was set aside.
                                                                                   E
      6. The Civil Revision Petition filed by the Auction Purchaser was
dismissed by the High !=ourt of Andhra Pradesh on !st February, 1990. It
was held that Courts had to harmonise the two provisions and interpret the
same having regard to the intention of the legislature. It was held that the
Judgment Debtor should be given the benefit of the enlarged period of              F
limitation under Art. 127 of the Limitation Act.

      7. It must be mentioned that in coming to the above conclusion the
Andhra Pradesh High Court relied upon a Judgment of this Court in the case
of Basavantappa v. Gangadhar Narayan Dharwadkar and Anr. reported in
(1986] 4 sec 273. In that case it was held that the two provisions had to be       G
harmoniously construed. In Basavantappa's case this Court had endorsed the
view of the Madras High Court, in the case of Thangamma/ and Ors. v, K.
Dhanalakshmi and Anr. reported in AIR (1981) Madras 254 that there was
an inconsistency in these two provisions and that the legislature should take
steps to remove the inconsistency.                                                 H
    64                        SUPREME COURT REPORTS (2001] SUPP. 2 S.CR.

A        8. On 20th February, 1990 this Court in the case of P.K. Unni v.
    Nirmala Industries and Ors., reported in [1990] 2 SCC 378 held that the
    limitation period for making deposit in an application for setting aside sale
    under Order ~XI Rule 89 is 30 days from the date of sale as prescribed under
    Order XXI Rule 92(2). It was noted that under Article I27, Limitation Act,
B   1963 the period for making an application for setting aside the sale was 30
    days. It was noted that, in 1974, the Limitation Act was amended and the
    period of Limitation to file an application to set aside sale was extended from
    30 days to 60 days. This Court noticed that the Statement of Objects and
    Reasons, in extending the period to 60 days, was as follows:

           "An application to set aside a sale in execution of a decree on deposit
c          under Rule 89 of Order XXI is required to be made within 30 days
           from the date of the sale. Experience shows that this period is too
           short and often causes hardship because the judgment-debtors usually
           fail to arrange for moneys within that time. Banks usually take more
           than 30 days to sanction loans and advances. In the circumstances,
D          Entry I27 of the Schedule to the Limitation Act is being amended to
           increase the period of limitation to 60 days in respect of an application
           to set aside a sale in execution of a decree. This increase in the period
           of limitation will not affect the purchaser because five per cent of the
           purchase money is required to be paid to him. The advantage of the
           increased period of Jim itation will also be available to an application
E          under Rule 90 or Rule 91 of Order XXI to set aside a sale in execution
           of a decree. In view of the increase in the period of limitation,
           confirmation of a sale will have to await the expiry of the increased
           period of limitation."

F It was however held that Order XXI Rule 92(2) C.P.C. and Article 127,
    Limitation Act operated in different fields and that there was no repugnancy
    between the two. It was held that even though the period under Article 127,
    Limitation Act was enlarged that period had no bearing on the time allowed
    for making a deposit. This Court held as follows:

G          "15. The court must indeed proceed on the assumption that the
           legislature did not make a mistak(: and that it intended to say what it
           said: See Na/inakhya Bysack v. Shyam Sunder Ha/dar, [1953] SCR
           533, 545 : AIR 1953 SC 148. Assuming there is a defect or an
           omission in the words used by the legislature, the court would not go
           to its aid to correct or make up the deficiency. The court cannot add
H          words to a statute or read words into it which are not there, especially
DADI JAGANNADHAM v. JAMMULU RAMULU [S.N. VARIAVA, J.]                 65
 when the literal reading produces an intelligible result. No case can A
 be found to authorise any court to alter a word so as to produce a
 casus omissus: Per Lord Halsbury, Mersey Docks and Harbour Board
 v. Henderson Brothers. [(1888) 13 AC 595, 602: 4 TLR 703]. "We
 cannot aid the legislature's defective phrasing of an Act, we cannot .
 add and mend, and, by construction, make up deficiencies which are B
 left there": Crawford v. Spooner, [(1846) 6 Moore PC 1, 8, 9: 4 MIA
 179.

  16. Where the language of the statute leads to manifest contradiction
 "of the apparent purpose of the enactment, the court can, of course,
 adopt a construction which will carry out the obvious intention of the C
 legislature. In doing so "a judge must not alter the material of which
 the Act is woven, but he can and should iron out the creases.": Per
 Denning, L.J., as he then was, Seaford Court Estates Ltd. v. Asher
 (1949) 2 All ER 155, 164. See the observation of Sarkar, J. in M
 Pentiah v. Muddala Veeramal/appa, [1961] 2 SCR 295, 314: AIR
  1961 SC 1107.                                                         D
 17. In the construction of the relevant provisions, we see no
 contradiction or ambiguity or defect or omissiOn. We see no merit in
 the argument that Article 127 must override Rule 92(2) of Order XX!
 in respect of limitation. We view both the provisions as prescriptive
 of time for different purposes, and of equal efficacy and particularity.   E
 The maxim generalia specialibus non derogant has no relevance to
 their construction. Nor does the principle in Heydon case [(1584) 3
 Co Rep 7a: 76 ER 637] offer any help on the point in· issue. The
 mischief which the legislature had set out to remedy by amendment
 of Article 127 is what is stated in the objects and reasons clause. That   p
 object was accomplished by prescribing a longer period for filing an
 application to set aside a sale in execution of a decree. Furthermore,
 as already seen, by amendment of Rule 92(2) of Order XX! an
 opportunity was accorded to the depositor to make good the deficiency
 in the deposit made by him due to arithmetical or clerical mistake on
 his part. In no other respect did the legislature evince an intention to   G
 extend the period prescribed for making the deposit. It would perhaps
 have been better, more logical, reasonable and practical, as stated by
 the Kerala High Court in Dakshayini v. Madhavan, AIR (I 982) Ker
 126: 1981 Ker LT 861), to enlarge the period for making the deposit
 so as to make it identical with that prescribed for making the             H
    66                        SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A          application, and such extended period would have better served the
           object of the amendment, namely, ameliorating the plight of the
           judgment-debtor, but such are matters exclusively within the domain
           of legislation by Parliament and the court cannot presume deficiency
           and supply the omission. The legislature did not do more than what
                                                                                       ..
           it did. It has, in our view, accomplished what it had set out to achieve.
B          No more no less."

          9. When this Special Leave Petition reached hearing on 8th September
    1995 another three Judge Bench of this Court did not agree with the view
    expressed in P.K. Unni's case. That Bench, therefore, referred the matter to
C   a five Judge Bench for considering the correctness of the view taken in P.K.
    Unni's case. The Order dated 8th September, 1995 reads as follows:

           "A three-member bench of this Court in P.K. Unni v. Nirmala
           Industries and Ors., [1990) 2 SCC 378 has held that time for making
           a deposit in terms of Rule 89 Order XX! C.P.C. is 30 days and
D          Article 127 of the Limitation Act, 1963 prescribing a period of sixty
           days for making an application under Rule 89 has no relevance to the
           prescribed time for making the deposit, and that neither provision has
           any effect on the other as to time. It appears to us however that these
           two periods of limitation are two facets of the same coin. The
           difference, even though artificial, has to be resolved In permitting the
E          larger period of time to achieve the objective. We, on our part, find
           it difficult to bypass this three-judge bench decision. We, therefore,
           refer this matter to a five-judge bench for considering the correctness
           of the view taken in that case and for the purpose direct that the
           papers of this case be laid before Hon'ble the C.J.I..for constituting
           a five-judge bench. It may be mentioned that though the matter is
F
           short, it is likely to effect a large number of cases in the subordinate
           courts. It would therefore solicit early fixation."

          Under these circumstances this matter has come before this Bench of
    five Judges for deciding the question mentioned above.
G          10. Mr. Narasimha relied heavily on P.K. Unni's case. He submitted
    that even though the legislature intended to extend time to make deposit, they
    did not do so. He frankly admitted that if the language of the statute leads
    to a manifest contradiction of the apparent purpose of the enactment, the
    Court could adopt a construction which would carry out the obvious intention
H   of the legislature. He however submitted that in doing so the Court could not
      DAD! JAGANNADHAM v. JAMMULU RAMULU [S.N. VARIAVA, J.)                  67
alter the provision. He submitted that in the construction of the two provisions   A
i.e. Order XX! Rule 92(2) C.P.C. and Article 127, Limitation Act, there was
no contradiction or ambiguity or defect or omission. He submitted that both
the provisions prescribed time for different purposes. He submitted that Art.
127, Limitation Act prescribed a time for filing an application, whereas Order
XXI Rule 92(2) C.P.C. prescribed a time for making a deposit. He submitted         B
that the two provisions operated in different fields. He submitted that in
effect the legislature did not extend the period prescribed for making the
deposit even though they extended time for making an application. He
submitted that it would have been more in keeping with their intention, as
seen from the Statement of Objects and Reasons, if the legislature had enlarged
the period for making the deposit so that it was identical to the one prescribed   C
for making the application. He submitted that this was a matter exclusively
within the domain of legislation by Parliament and the Court could not presume
deficiency and supply the omission.

       11. Mr. Bisaria has fully supported the view taken in the impugned
Judgment. He relied on the decision of this Court in Basavantappa's case and       D
submitted that there was an apparent conflict. He submitted that the Courts
must give an interpretation which would give effect to the intention of the
legislature. In support of this submission he cited the cases of Thangammal
and Ors. v. K. Dhanalakshmi and Anr., reported in AIR (1981) Madras 254,
Pathummakutty and etc. v. Thekkecha/i/ Kathiyumma and Anr etc., reported           E
in AIR (1990) Kerala 286 and The Court Liquidator v. Bimalendu Das and
Ors, reported in AIR (1985) Calcutta 382.

       12. Mr. Bisaria further submitted that Order XXI Rule 92(2) C.P.C.
does not prescribe any period for deposit of monies but only provides that if
the deposit is made within 30 days and an application filed then the Court         F
would have no discretion to refuse to set aside sale. He submits that by
extending the period of time to file an application the legislature has now left
it to the discretion of the Court, to allow or rlisallow, the application if the
deposit is not made within 30 days,

       13. We have considered the submissions made by the parties. The
                                                                                   G
settled principles of interpretation are that the Court must proceed on the
assumption that the legislature did not make a mistake and that it did what
it intended to do. The Court must, as far as possible, adopt a construction
which will carry out the obvious intention of the .legislature. Undoubtedly if
there is a defect or an omission in the words used by the legislature, the Court   H
                                                                        l.




    68                        SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A would not go to its aid to correct or make up the deficiency. The Court could
    not add words to a statute or read words into it which are not there, especially
    when the literal reading rroduces an intelligible result. The Court cannot aid
    the legislature's defective phrasing of an Act, or add and mend, and, by
    construction, make up deficiencies which are there.

B         14. If the rationale in P. K. Unni's case is accepted there is a manifest
    contradiction. As seen the object and intention in amending Article 127,
    Limitation Act was to extend time to mal<;e deposit. This will not have been
    achieved if the rationale in P. K. Unni's case is accepted. If Order XXI Rule
    92(2) C.P.C. and Art 127, Limitation Act operate in different fields then it
C   would imply that the Legislature had undergone a useless formality in
    extending the period of limitation to file an application. Order XX! Rule 89
    C.P.C. provides that an application to set aside sale can be made if the
    amourts mentioned therein are deposited. Thus the deposit has to precede or
    be made at the same time as the application. There would thus be no purpose
    in permitting filing of an application after 30 days if the deposit had to be
D   made within 30 days and the legislature would have undertaken a useless
    formality.

        15. A plain reading of Order XXI Rule 92 C.P.C. shows that the Court
  could either dismiss an application or allow an application. Order XX! Rule
  89 C.P.C. prescribes no period either for making the application or for making
E the deposit. The Limitation Act also prescribes no period for making a deposit.
  However Article 127, Limitation Act prescribes a period within which an
  application to set aside a sale should be made. Earlier, this was 30 days, now
  it has been enhanced to 60 days. Unless there was a period prescribed for
  making a deposit, the time to make the deposit would be the same as that for
F making the application. This is so because if an application is made beyond
  the period of limitation, then a deposit made at that time or after that period
  would be of no use.

          16. Normally, when the legislature wishes to prescribe a period for
    making a deposit, it does so by using words to the effect "No deposit shall
G   be made after .... days" or "a deposit shall be made within ..... days" or "no
    application will be entertained unless a deposit is made within .... days".
    Order XXI Rule 92(2) C.P.C. does not use any such expressions. The relevant
    portion of Order XXI Rule 92(2) C.P.C. reads as follows :

            "Where such application is made and allowed, and where, in the case
H           of an application under Rule 89, the deposit required by that rule is
      DAD! JAGANNADHAM v. JAMMULU RAMULU [S.N. VARIAVA, J.]                  69

        made within 30 days from the date of sale .... the Court shall make an     A
        order setting aside the sale."

Thus Order XX! Rule 92(2) C.P.C. is only taking away discretion of the
Court to refuse to set aside the sale where an application is made and allowed
and the deposit has been made within 30 days from date of sale. It is thus
clear that Order XX! Rule 92(2) C.P.C. is not prescribing any period of            B
limitation within which a deposit has to be made.

       17. Viewed in this context the intention of the legislature in extending
the period under Article 127 Limitation Act may be seen. It is very clear
from the Statement of Objects and Reasons, which have been set out
hereinabove, that the period under Article 127 Limitation Act was extended         C
from 30 days to 60 days in order to give more time to persons to make
deposits. The legislature has noted that the period of 30 days from the date
of sale was too short and often caused hardships because Judgment-debtors
usually failed to arrange for moneys within that period. The question then
would be whether by merely amending Article 127 Limitation Act the                 D
legislature has achieved the object for which it increased the period of
limitation to file an application to set aside sale.

       18. Having given our careful consideration to the question, we are of
the opinion that there is no anomaly and that there are no different periods
of limitation for making deposits and/or filing an application for setting aside   E
the sale. It is by virtue of Order XX! Rule 89 C.P.C. that an application for
setting aside a sale and a deposit can be made. Order XXI Rule 89 C.P.C.
does not prescribe any period within which the application is to be made or
deposit is to be made. All that Order XX! Rule 92(2) provides is that if the
deposit is made within 30 days from the date of sale and an application is         F
filed then the Court would have no discretion but to set aside the sale. That
does not mean that if the deposit is made after 30 days the Court could not
entertain the application. If the deposit is made beyond the period of JO days,
but within the period of 60 days, then it will be within the discretion of the
Court whether or not to grant the application. Thus, an application can be
made within the period prescribed under Article 127, Limitation Act. As an         G
application can be made within 60 days and, as stated above, no period for
making a deposit is prescribed under Order XX! Rule 92(2) the deposit can
also be made within 60 days. In our view, therefore, the view expressed in
P.K. Unni's case that Order XXI Rule 92(2) C.P.C. prescribes a period of
limitation for making a deposit is not correct.
                                                                                   H
    70                       SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A         19. In this view of the matter, we see no merits in the Appeal. We see
    no infinnity in the impugned Order. The Appeal stands dismissed. There will
    be no Order as to costs.

    R.P.                                                     Appeal dismissed.