P.K. UNNIversusNIRMALA INDUSTRIES & ORS.

                              P.K. UNNI
                                   v.                                             A
                      NIRMALA INDUSTRIES & ORS.

                              FEBRUARY 20, 1990

                [K.N. SINGH, T. KOCHU THOMMEN AND
                          N.M. KASLIWAL, JJ.]
                                                                                  B

           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       c
     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    D
     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              E
     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    F
      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)
                                                                                  G
           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;
                                                                                  H
                                       483
    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.
    Muddala Veeramallappa & Ors., [1961] 2 S.C.R. 295 at 314 Heydon"s           '"i:
    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
    in A.A.0. No. 421of1983. The sole question that arises for considera-
E
    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
    days from the date of sale as provided in Article 127 of the Limitation
F
    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
    dedsion ·in -That~gammal & Ors. v. K. Dhanalakshmi & Anr., AIR
G   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
    time.       ·
H
             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 of the purchase-money, and

               (b) for payment to the decree-holder, the amount speci-
                                                                              c
               fied in the proclamation of sale as that for the recovery of
               which the sale was ordered, less any amount which may,
               since the date of such proclamation of sale, have been
               received by the decree-holder,
                                                                              D
                                                                         "

         Rule 92(2) of Order XXI reads:

               (2) ................... where, in the case of an applica-
               tion under Rule 89, the deposit required by that rule is E
               made within thirty days from the date of sale, [or in cases
               where the amount deposited under Rule 89 is found to be
               deficient owing to any clerical or arithmetical mistake on
               the part of the depositor and such deficiency has been made
               good within such time as may be fixed by the Court, the
               Court shall make an order setting aside the salef.          F
                                                                         "

          The words shown in bracket in Rule 92(2) we~e substituted by
    section 72 of the Civil Procedure Code (Amendment) Act, 1976 with
    effect from 1.2.1977. The object ;of the amendment was to afford an
    opportunity to the applicant to make good any deficiency in the G
    amount deposited under ~ule 89 when the deficiency occurred by
    reason of clerical or arithmetical mistake on his part. That amendment
J   has no relevance to the point in issue as regards the period of limita-
"   tion except to emphasise that sub-rule (2) of Rule 92 had received the
    special attention of Parliament in 1976. Parliament addressed itself
    particularly to the sub-rule, and yet did not, apart from the special H
     486                    SUPREME COURT REPORTS            [1990] 1 S.C.R.

    contingency provided for by the amendment, think it necessary to
A
    extend the period generally prescribed under Rule 92(2) to make the
    deposit which is a condition precedent to an application to set aside a
    sale.

          Rule 89 postulates an application on deposit. It says "may apply
B   to have the sale set aside on his depositing in Court". These words
    show that deposit is a condition precedent to the making of an applica-
    tion to set aside a sale. That condition must be satisfied within the
    period prescribed by sub-rule (2) of Rule 92, which undoubtedly is 30
    days. Parliament refused to alter that provision even when a part of


c
    the sub-rule was substituted.

          No doubt on this aspect would probably have arisen had it not
    been for the longer period prescribed by Article 127 of the Limitation
    Act, 1963 (as substituted by the Amending Act 104 of 1976 with
                                                                                  -
D
    effect from 1.2.1977) for making an application under Rule 89, That
    Article reads:                                                               *·
    Description                  Period of       Time from which
    of suit                      limitation      period begins to run

    127. To set aside            Sixty           The date of
E - a sale in execution          days            the sale
    of a decree includ-
    ing any such applica-



f
    tion by a judgment-
    debtor."


          Prior to the Amending Act 104 of 1976 the period prescribed by
                                                                                 J
    Article 127 was 30 days. ·As a result of the amendment, a period of 60
    days is provided for making an application to set aside a sale. It is
    important to remember that Article 127 appears in Part I of Third
    Division of the Schedule to the limitation Act, 1963, dealing exclu-
0   sively with applications. Article 127 thus relates solely to the making of
    an application and not to a deposit. This Article governs applications
    made under Rules 90 and 91 as well, but we are not conC:emed with
    them.

         It is true that prior to the Amending Act 104 of 1976, the period
H   prescribed for the making of an application was identical to that for the
                    P.K. UNNI v. NIRMALA INDUSTRIES (THOMMEN, J.]                487

          making of a deposit. But as a result of the amendment, different A
          periods are now· prescribed for the making of the deposit and the
          application. That it was the legislative intent to provide different
          periods of limitation for these two matters is, from the language used·
          in the two enactments, clear and explicit. The reason why the legisla-
          ture provided for different periods for the two matters which are the
          necessary steps-one following the other-to be taken for setting aside B
          the sale of an immovable property sold in execution of a decree is not
          for the Court to question. This Court would not assume that the legis-
          lature made a mistake in this respect or made an omission in accomp-
          lishing what it had set out to achieve.

..              There is no inconsistency between the two sets of provisions
          prescribing different periods of limitation. Such inconsistency can C
          arise only if obedience of one provision will result in disobedience of
          the other. While Rule 92(2) requires a deposit to be made wit.hin 30
          days from the date of sale, Article 127 requires an application contemp-
          lated under Rule 89 to be made within 60 days from the date of sale.
          As stated earlier, the deposit must necessarily precede the application D
          for no application under Rule 89 can be made except on depositing the
          amount in Cow:t. We see no inconsistency in these two setS of
          provisions.
     \
 _A_·
                The words of the statutes being clear, explicit and unambiguous,
          there is no s~pe to have recourse to external aid for their construe-        E
          tion. Neverthliless in deference to the arguments of the respondents'
          counsel, we would refer to the Statement of Objects and Reasons in
          respect of clause 102 of the Bill introduced in the Lok Sabha on 8th
          April, 1974 [Published in the Gazette of India (Extraordinary) Part II,
          Section 2, dated April 8, 1974] amending Article 127. It states:
     -+                 "Clause 102 (Amendment of the Schedule to the Limita-
                                                                                        F

                        tion Act, 1953)-An application to set aside a sale in
                        execution of a decree on deposit under Rule 89 of Order
                        XXI is required to be made within thirty days from the date
                        of the sale. Experience shows that this period is too short
                        and often causes hardship because the judgment-debtors G
                        usually fail to arrange for moneys within that time. Banks
                        usually take more than thirty days to sanction loans and
                        advances. In the circumstances, entry 127 of the Schedule
                        to the Limitation Act is being amended to increase the
                        period of limitation to sixty days in respect of an application
                        to set aside a sale in execution of a decree. This increase in H
    488                    SUPREME COURT REPORTS           [1990] 1 S.C.R.

                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
                limitation will also be available to an application 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
B               of limitation, confirmation of a sale will have to await the
                expiry of the increased period of limitation."

                                                       (emphasis supplied)

          The legislative intent, as seen from the above statement, was
    indeed to extend the period prescribed for making an application and
c   not for any other purpose. That is the reason why Article 127 was
    amended enlarging the period for making an application from 30 days
    to 60 days. That period has no bearing on the time allowed for making
    a deposit in respect of which the period is prescribed, not under
    Article 127, but under Rule 92(2) of Order XXI, and this period has
D   always been, and remains to be, 30 days. We see no repugnance dr
    inconsistency or lack of clarity in these two sets of provisions.

          Appearing for the appellant (the auction purchaser), Mr.
    Parasaran submits that the High Court was not jus!ified in attempting
    to correct or supply, what it thought to be, a defect or an omission in
E   the statute. He rightly contends that even if there was an omission, it
    was not for the Court to rectify it.

          The Court must indeed proceed on the assumption that the
    legislature did not make a mistake and that it intended to say what jt
    said: See Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., [1953]
F   SCR 533 at 545. Assuming there is a defact 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 words to a statute or
    read words into it which are not there, especially when the literal
    reading produces an intelligible result. "No case can be found to
    authorise any court to alter a word so as to produce a casus omissus":
G   Per Lord H_alsbury, M~rsex Docks v. Hende~son. [1888]°13 App. Cas.
    595, 6UL. '·We cannot aid the legislature's defective phrasing of an
    Act, we cannot add and mend, and, by construction, make up
    deficiencies which are left there": Crawford v. Spooner, [1846] 6
    Moore P.C. i, 8, 9.
                                                                               +
H         Where the language of the statute leads to manifest contradiction
                     P.K. UNNI v. NIRMALA INDUSTRIES [THOMMEN, J.]              489

            of the apparent purpose of the enactment, the Court can, of course,
                                                                                        A
            adopt a construction which will carry out the obvibus intention of the
  'Y·       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 v. Asher,




~
            All E.R. [1949] 2 155 at 164. See the observation of Sarkar, J. in
            M. Pentiah & Ors. v. Muddala Veeramallapa & Ors., [1961] 2 S.C.R.           B
            295 at 314.

                   In the construction of the relevant provisions, we see no contra-
            diction or ambiguity or defect or omission. We see no merit in the
            argument that Article 127 must override Rule 92(2) of Order XXI in
            respect of limitation. We view both the provisions as prescriptive of
            time for different purposes, and of equal efficacy and particularity.       c
            The maxim genera/ia specia/ibus non derogant has no relevance to



  •
            their construction. Nor does tl;te principal in Heydon's case [1584] 3 Co
            Rep 7a: 76 ER 6371,?ffer any help on the.point in issue. The mischief
            which the legislature had set out to remedy by amendment of Article
            Le 7 is what is stated in the objects and reasons clause. That object was   D
            accomplished by prescribing a longer period for filing an application to
            set aside a sale in execution of a decree. Further more, as already seen,
            by amendment of Rule 92(2) of Order XXI an opportunity was
            accorded to the depositor to make good the deficiency in the deposit
...-{'      m11de by him due to arithmetical or clerical mistake on his part. In no
            other respect did the legislature evince an intention to extend the         E
            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 & Ors. v. Madhavan, AIR 1982 Kerala 126,
            to enlarge the period for making the deposit so as to make it identical
"           with that prescribed for making the application, and such extended
  ..,, ..   period would have better served the object of the amendment,
            namely, ameliorating the plight of the jll.dgment-debtor, but such are
                                                                                        F

            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 bas, in our view,
            accomplished what it had set out to achieve. No more no less.
                                                                                       G
                    In the circumstances, we hold that the correct construction of
            Rule 92(2) of Order XXI of the Civil Procedure Code, 1908 leads to
  ~r        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 prescribed time for making the deposit. H
    490                   SUPREME COURT REPORTS           [1990] 1 S.C.R.

A   Neither provision has any effect on the other as to time. All decisions
    to the contrary on the point, we hold, are incorrect. With the greatest
    respect, we disagree with the contrary view expressed in Basavantappa
    v. Gangadhar Narayan Dharwadkar & Anr., [ 1986] 4 SCC 273.

          On the question of limitation the judgment of the High Court is
B   set aside, and the appeal is allowed to that extent. We make no order
    as to costs.

    R.N.J.                                                Appeal allowed.




                                                                              +