Dismissed

Pathapallem Sulochanamma v. v.Nageswara rao

Telangana HC23 Dec 2014CRP/4860/2012

Case brief

AI extract

What is this about?

Civil Revision Petitions challenging the dismissal of applications to set aside auction sales. The court held that Section 5 of the Limitation Act is inapplicable to such applications, which are governed by Article 127, requiring filing within 60 days. Filing after 60 days is fatal regardless of possession delivery timing.

What did the court decide?

Civil Revision Petitions dismissed with no order as to costs and pending miscellaneous petitions closed.

Pathapallem Sulochanamma Vs v.Nageswara rao — Execution and Attachment | Telangana HC (2014)

¶1

HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

¶2

CIVIL REVISION PETITION Nos. 4591 of 2012, 4860 of 2012

¶3

and 3289 of 2013

¶4

COMMON ORDER:

¶5

C.R.P.No.4591 of 2012 is filed under Section 115 C.P.C. questioning the docket order dated 10.09.2012 passed in unnumbered E.A. in E.P.No.406 of 2005 in Tr.O.S.No.1981 of 2004 on the file of the Principal Junior Civil Judge, Nellore.

¶6

C.R.P.No.4860 of 2012 is filed under Section 115 C.P.C. questioning the docket order dated 10.09.2012 passed in E.A.No. of 2012 in E.P.No.406 of 2005 in Tr.O.S.No.1981 of 2014 on the file of the Principal Junior Civil Judge, Nellore.

¶7

C.R.P.No.3289 of 2013 is filed under Section 115 C.P.C. questioning the order dated 10.09.2012 passed in E.A.No.312 of 2011 in E.P.No.406 of 2005 in Transfer O.S.No.1981 of 2014 on the file of the Principal Junior Civil Judge, Nellore.

¶8

Since the issue involved in all these three Civil Revision Petitions filed under Section 115 C.P.C. is one and the same, they are being disposed of by this common order.

¶9

The facts in issue are as under:

¶10

First respondent herein is the decree holder and the second respondent is the auction purchaser of the E.P. Schedule Property. It is stated that the E.P. schedule property was purchased in the name of the judgment debtor with the funds derived from the joint family property. As the property is of high value, the petitioner i.e. judgment debtor along with her daughters

¶11

while they were minors entered into an un-registered Memorandum of agreement dated 07.09.1995 and thereafter entered into a registered partnership deed dated 02.08.2010 which was said to have been registered in the office of the SubRegistrar, Nellore. The averments in the petition also discloses that as the judgment debtor was in need of money, she approached the Life Insurance Corporation Housing Finance and obtained a loan of Rs.10.00 lakhs on 23.05.2001 by depositing the original partnership deed undertaking to repay the same within 15 years. While the matter stood thus, the decree holder filed O.S.No.1981 of 2004. As the judgment debtor was not able to prosecute the case an ex parte decree came to be passed against her on 02.02.2005 which was in turn transmitted to the Court of Principal Junior Civil Judge, Nellore, for execution of the decree. The decree holder filed E.P. and an auction was conducted on 15.04.2008 by quoting a price of Rs.12,40,000/-.

¶12

It is further stated in the petition that the daughters of the judgment debtor filed a claim-petition claiming 2/3^rd share in the E.P.Schedule property. But subsequent steps on the said petitions under Order XXI, Rule 58 of C.P.C. could not be pursued because of sale of the property which took place on 15.04.2008 and the same being confirmed on 01.02.2011. Thereafter the possession was delivered on 29.08.2012.

¶13

The orders under challenge came to be passed in an application filed Under Order XXI Rule 89 and 144 read with 151 of C.P.C. seeking to set-aside the sale dated 05.04.2008. By an order dated 10.09.2012 the learned Principal Junior Civil Judge, Nellore, returned the same as not maintainable and also closed the petition filed by the auction purchaser in E.A.No.312 of 2011.

¶14

The undisputed facts which emerge out from the above is that an application under Order XXI Rule 89 of C.P.C. to set-aside the sale came to be filed on 03.09.2012 in respect of a sale which took place on 05.04.2008 which was confirmed on 01.02.2011 and possession was delivered on 29.08.2012 i.e. four days after delivery of the possession the present application came to be filed.

¶15

Learned counsel for the petitioner mainly submits that the delay in filing the said application can be condoned by invoking the power under Section 5 of the Limitation Act. In the affidavit filed in support of the petition, the petitioner gives reason as to why the said application could not be filed immediately. Apart from that the counsel for the petitioner submits that the application filed by her was rejected on technical grounds and that she is ready to deposit the entire decretal amount as per law. It is stated that the Court ought to have conducted auction of the property to the satisfaction of the decree instead of auctioning the entire property.

¶16

Learned counsel for the first respondent would submit that the order under challenge warrants no interference as Section 5 of the Limitation Act cannot be applied to an application made under Order XXI Rule 89 C.P.C. He further submits that an application to set-aside the sale should have been filed prior to the confirmation of sale and not after taking possession of the property.

¶17

Both the counsels relied upon the judgment of the Apex Court in Dadi Jagannadham v. Jammulu Ramulu and

¶18

other s^[1] .

¶19

The first objection raised by the learned counsel for the petitioner is that the delay in filing the application is neither willful nor wanton and as sufficient reasons are shown, the same may be condoned by invoking the provisions of Limitation Act. He placed reliance on the judgment of the Apex Court in Banda Chinna Subbarayudu v. Thailam Vishwanatha Ra o^[2] . In the said case the appellant therein suffered a decree for recovery of money in O.S.No.458 of 1998. Pursuant to the same the respondent therein who is the plaintiff filed E.P.No.352 of 2000 for sale of property. On 25.11.2003 the sale was conducted and the property in question was sold to the second respondent. On an appeal filed by one Chennakkagari Ravindranath Reddy, execution proceedings were stayed. Subsequently in the execution proceedings, the judgment debtor filed an application under Order 21, Rule 89 of C.P.C. to set-aside the sale which was held on 25.11.2003. Objections were filed by the respondent therein raising two grounds namely:- (1) that the deposit made by the judgment debtor was less than what was required to be deposited under Order 21 Rule 89 of C.P.C. and (2) that the application had been filed well beyond the period of limitation prescribed under Article 127 of the Limitation Act. The application filed by the Judgment Debtor was dismissed by the Executing Court on both grounds and the same was confirmed in an appeal. When the matter was taken to the High Court, the same was held in favour of the appellant insofar as the amount of deposit is concerned. However, the High Court affirmed the order of the Executing Court, as well as the Appellate Court, on the question

¶20

of limitation. Aggrieved by the same, an appeal was preferred before the Apex Court.

¶21

The question that fell for consideration before the Apex Court was whether the appellant therein would be entitled to the benefit of the period of stay during which he was prevented in taking steps to file an application for setting aside the sale. After considering the material on record and also rival contentions, it was found that execution proceedings were stayed on 25.11.2003 which was vacated on 02.12.2004. The Apex Court held that if the period from 25.11.2003 to 02.12.2014 was excluded, the application filed by the judgment debtor under Order XXI Rule 89 of C.P.C. was in time.

¶22

Situation on hand appears to be totally different. As stated earlier the sale was conducted on 15.04.2008, which confirmed on 01.02.2011 and possession was delivered on 29.08.2012. Four days there after, an application was filed to set-aside the sale. Therefore, the judgment of the Apex Court relied upon by the learned counsel for the petitioner will not be any helpful to him.

¶23

On the other hand, in Mohan Lal v. Shri Hari Prasad Yadav and other s^[3] t he Apex Court while dealing with the applicability of Limitation Act to an application made under Order XXI Rule 89 C.P.C. held as under:

¶24

“It is settled law that an application to set aside sale under Order XXI, Rule 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.

¶25

The application under Order XXI, Rule 89 of the Code being an application under the provisions of

¶26

Order XXI, Section 5 of the Limitation Act, on its own language, is not applicable specifically.”

¶27

From the judgment of the Apex Court referred to above it is clear that Section 5 of Limitation Act cannot be invoked in respect of an application made under Order XXI of C.P.C.

¶28

Coming to the main ground urged by the learned counsel for the petitioner that the said application was within the period prescribed under the Code, it would relevant to extract Order XXI Rule 89 of C.P.C. which is as under:

¶29

Rule 89: Application to set aside sale on deposit:

¶30

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 acting for or in the interest of such person,) may apply to have the sale set aside on his depositing in Court:-

¶31

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and

¶32

(b) for payment to the decree holder, the amount specified 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.

¶33

A reading of the above provision makes it clear that any immovable property which has been sold in execution of a decree, the person claiming interest in the said property may apply to have the sale set-aside by depositing in Court the sum equal to 5% of the purchase money to be paid to the purchaser and for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale

¶34

was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder.

¶35

The question before the Apex Court in Dadi Jagannadham case (1 supra) which is relied upon by both the counsel was “Whether the period of limitation for making deposit, in an application to set aside sale of immovable property under Order XXI Rule 89 of C.P.C. is 30 days from the date of sale (being the period prescribed in Order XXI Rule 92 (2) C.P.C.) or 60 days from the date of sale (as prescribed in Article 127 of the Limitation Act). It was a case where the sale was held on 22.11.1982 and an application was made on the 59^th day of the sale by depositing the prescribed amount. The said application was dismissed on 11.03.1983 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 by setting aside the order of the Executing Court. While dismissing the Civil Revision Petition filed by the auction purchaser, the High Court held that the Court has to harmonise the two provisions and interpret the same having regard to the intention of the legislature. It was also held that the judgment debtor should be given the benefit of the enlarged period of limitation under Article 127 of the Limitation Act. The said order was challenged before the Apex Court. The Apex Court after referring to various authorities on subject held as under:

¶36

“Order XXI Rule 89 of C.P.C. provides that an application to set aside sale can be made if the amounts 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 made within 30 days

¶37

and the legislature would have undertaken a useless formality.

¶38

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 XXI Rule 89 of C.P.C. prescribes no period either for making the application or for making the deposit. The Limitation Act also prescribes no period for making a deposit. However, Article 127 of 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 6 days. Unless there was a period prescribed for making a deposit, 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.

¶39

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 be made after …..days” or “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:

¶40

“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 30 days from the date of sale the Court shall make an order setting aside the sale”

¶41

Thus Order XXI Rule 92 (2) C.P.C. is only taking away the 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 21 Rule 92 (2) C.P.C. is not prescribing any period of limitation within which a deposit has to be made.

¶42

Viewed in this context the intention of the legislature in

¶43

extending the period under Article 127 of the 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 of the Limitation Act was extended 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 legislature has achieved the object for which it increased the period of limitation to file an application to set aside sale.

¶44

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 the sale. It is by virtue of Order XXI 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 XXI Rule 92 (2) provides is that if the deposit is made within 30 days from the date of sale 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 30 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 grant the application. Thus, an application can be made within the period prescribed under Article 127 of the Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order XXI Rule 92 (2) the deposit can also be made within 60 days.

¶45

From the judgment of the Apex Court referred to above, it is clear that an application for setting aside the sale and deposit

¶46

made under Order XXI Rule 89 of C.P.C. does not prescribe any period with which the application is to be made or deposit is to be made. But Order XXI Rule 92 (2) C.P.C. provides that if the deposit is made within 30 days from the date of sale and if an application is filed then the Court has no discretion but to set aside the sale. The Apex Court further held that 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 grant the application. The Apex Court further held that when no period for making a deposit is prescribed, the deposit can also be made within 60 days. As stated earlier in the instant case the application was made nearly four years after the date of sale and four days after delivery of possession. Therefore, the interpretation given by the learned counsel for the petitioner that an application can also be filed beyond the period of 60 days cannot be accepted.

¶47

In Ram Karan Gupta V. J.S.Exim Limited and other s^[4] the Apex Court held that the rule is in the nature of a concession shown to the judgment debtor, so he has to strictly comply with the requirements thereof and a sale will not be set aside unless the amount specified in sub-rule (1) is deposited within 60 days from the date of sale and, if it is beyond 60 days, the Court cannot allow the application.

¶48

In view of the judgments referred to above and for the aforesaid reasons, I see no grounds to interfere with the orders passed by the learned Principal Junior Civil Judge, Nellore.

¶49

Accordingly, the Civil Revision Petitions are dismissed.

¶50

There shall be no order as to costs.

¶51

As a sequel thereto, Miscellaneous Petitions pending if any in this Civil Revision Petitions, shall stand closed.

¶52

_____________________ C. PRAVEEN KUMAR, J

¶53

23.12.2014 gkv

¶54