(1.)SPECIAL leave is granted.
(2.)THIS appeal arises from the judgment of the Madras High Court in A.A.O. No. 421 of 1983 (reported in 1987 (2) Mad LJ 3). The sole question that arises 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 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 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. In coming to that conclusion the High Court followed its earlier decision in Thangammal v. K. Dhanalakshmi, AIR 1981 Madras 254 and the decision of this Court in Basavantappa v. Gangadhar Narayan Dharwadkar, (1986) 4 SCC 273 : (AIR 1987 SC 53). 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 made within 60 days from the date of sale was well within time.
We shall read the relevant provisions insofar as they are material. 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 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 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 ... "
Rule 92(2) of Order XXI reads:
(2)... where, in the case of an application under Rule 89, the deposit required by that rule is 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 sale):
(3.)THE words shown in bracket in Rule 92(2) were 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 amount deposited under Rule 89 when the deficiency occurred by reason of clerical or arithmetical mistake on his part. That amendment has no relevance to the point in issue as regards the period of limitation 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 contingency provided for by the amendment, think it necessary to 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 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 application 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 the sub-rule was substituted.