BASAVANTAPPA Vs. GANGADHAR NARAYAN DHARWADKAR

JUDGEMENT

(1.) In 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 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 by S. 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 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:

(2.) The failure to deposit the amount 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 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 deposit, , 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, 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. (2) of R. 92 of the Code. Under O. XXI, R. 89 as it now exists, both the 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.

(3.) In the present case, the auction was held on July 26, 1985. The decree-holder brought to sale in 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 offered by the auction-purchaser was accepted and the bid was knocked down in his favour. The executing Court fixed the case for confirmation of sale on September 30, 1985. In the meanwhile, judgment-debtor No. 1 deposited Rs. 22,000 on August 29, 1985 towards 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 purporting to be under O. XXI, R. 89 read with S. 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 the judgment-debtor has deposited the entire decretal amount together 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 dated March 26, 1986 declined to interfere with the order of the learned Munsif setting aside the sale. The learned Judge relying upon the decision of the Madras High Court in Thangammal v. K. Dhanalakshmi, 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 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) of R. 92 of O. XXI of the Code and Art. 127 of the Limitation Act and suggested that steps should be taken to remove this inconsistency. We fully endorse the view expressed by the learned single Judge.