MOHAN LALversusSHRI HARI PRASAD YADAV AND ORS.

                              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
                                                                                F
       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
 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
    1984.

          From the Judgment and Order dated 26.4.83 of the Patna High Court
    in C.R. No. 984 of 1982.

B           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.
c
            Th~ Judgment of the Court was delivered by

          YOGESHWAR 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
 · 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
F 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 amount within a short period. It was submitted on his behaH
         that irreparable loss will be caused if his prayer is not allowed.
                                                                                c
             In the interest of justice and in the circumstance of the case I
         take the liberty to order the judgment debtor to deposit hence
         forth Rs. 5000 and is order to deposit the remaining amount under
         decreed latest by 10.6.82 failing which the sale will be confirmed.
                                                                                D
              I also find that the auction purchaser in the circumstances
         would be put to loss the position being that the judgment-debtor
         would separately deposit another amount equivalent to the interest
         at the rate of 5% from the date of deposit by the auction purchaser
         till 10.6.82 by way of compensation remuneration for the auction
         purchasers. This amount is ordered to be deposited alongwith the       E
         decretal amount on separate item on this amount by month of June
         failing which the sale in question will be confirmed.

             The judgment debtor must comply with the order by the date
         fixed.
                                                                                F
                                                              Sd/-R.C. Ram

                                                                 AS.I. III"

      On revision being filed by the auction purchaser against this order,
the High Court accepted the same and .dismissed the application filed G
under Order 21 rule 89 of the Code as being barred by time. The other
objections of the auction purchaser, as to the maintainability of the applica-
tion under Order 21 rule 89 of the Code in view of the dismissal ·of the
objections under Order 21 rule 90 of the Code were not decided since the
High Court felt that the application under Order 21 rule 89 was barred by H
    110                     SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A time in view of the limitation provided under Article 127 of the Limitation
     Act, which provides as under :

                                                                  Tune from
                                                   Period of
      Article          Description of suit                       which period
                                                   limitation
                                                                 begins to run
B     127        To set aside a sale in execution Sixty days    The date of the
            .    of a decree including any such                 sale
                 application by a judgment-
                 debtor.

c           It is settled law that an application to set aside sale under Order 21
      89 of the Code is governed by Article 127 of the Limitation Act. Section 5
    . of the Limitation Act has no application on its own wordings. Section 5 of
      the Limitation Act reads as follows :

             ." "5. Extension of prescribed perio4in certain cases. • Any appeal
D               or any application, other than an application under any of the
                provisions bf Order XX! of the Code of Civil Procedure, 1908, may
            , be admitted after the prescribed period if the appellant or the
                applicant satisfies the court that he had sufficient cause for not
                preferring the appeal or making the application within such period.
E
                Explanation. - The fact that the appellant or the applicant was
                misled by any order, practice or judgment of the High Court in
                ascertaining or computing the prescribed period may be sufficient
                cause within the meaning of this section."

F          The application under Order 21 rule 89 of the Code being an
     application under the provisions of Order 21, Section 5 of the Limitation
     Act, on its own language, is not applicable specifically.

           We are thus left with the question whether Section 148 of the Code
G    would be applicable to the present case or not. Again section 148 of the
     Code would not be applicable to the present case for the simple reason
     that the time for making an application under rule 89 of Order 21 of tl;\e
     Code is not f1Xed by the Court.

          The High Court was thus right in coming to the conclusion that the
H    executing court had no jurisdiction whatsoever to entertain the application
                   MOHAN v. H.P. YADAV [DAYAL,J.]                        111

purporting to be under Order 21 rule 89 of the Code after the period of         A
limitation prescribed by Article 127 of the Limitation Act.

      The result is that the appeal fails and is dismissed.

       Lean;1ed counsel for the judgment-debtor had invited us to give a
fmding as to the extent of the property which was sold as a result of court     B
sale. We are not inclined to go into this question in the present proceedings
as it is a matter to be decided by the executing court while granting the
sale certificate.

                                   Order
                                                                                c
       In the present case the executing court had dismissed the objections
filed by the petitioners/judgment-debtors under Order 21 rule 90 of the
Code of Civil Procedure by order dated 4th May, 1982. The High Court,
affirming the order of the executing court, dismissed the appeal by the
impugned order dated 21st December, 1983.
                                                                                D
      We find no reason whatsoever to interfere with the impugned order
of the High Court. The special leave petition is accordingly dismissed.

T.N.A.                                         Petition & Appeal dismissed.