N.D. Ojha, J. - (1.) IN execution of a decree passed in favour of M/s. Trilok Chand Prahlad Rai, Respondent No. 4 certain properties belonging to the petitioner were put up for sale. 15th December, 1980, was the date fixed for sale. The Amin of the Court concerned, who was deputed in this behalf, conducted the sale on that date. The bid of Smt. Shakuntala Devi Burman, Respondent No. 3, for Rs. 11,000/ - was the highest bid and after the bidding was over Respondent No. 3 deposited 25% of the purchase money. The Amin submitted the papers to the Court concerned for necessary orders. The balance of the purchase money was deposited by Respondent No. 3 in Court on 1st January, 1981. Due to winter vacations in the Court this deposit was within 15 days of 15th December, 1980, namely, the date on which the sale was held. On 13th January, 1981, an order was passed by the Court accepting the bid and requiring the decree -holder to deposit the poundage fee by 15th January, 1981. An application was made by the petitioner judgment -debtor on 16th March, 1981, for setting aside the sale under Rule 89 of Order 21 C.P.C. The requisite amount contemplated by the said rule was also deposited by the petitioner on that date. The application was contested by Respondent No. 3, the auction purchaser, on the ground that it was barred by time. This objection found favour with the Court executing the decree and the sale was set aside on 29th January, 1982. Aggrieved by that order Respondent No. 3 preferred an appeal before the District Judge. The appeal came up for hearing before the VIth Additional District Judge, Aligarh and was allowed on 16th August. 1982. It was held that the application under Rule 89 of Order 21 C.P.C. was barred by time. It is this order of the VIth Additional District Judge, Aligarh, dated 16th August, 1982, which is sought to be quashed in the present writ petition. It has been urged by counsel for the petitioner that the application made by the petitioner under Rule 89 of Order 21 C.P.C. for setting aside the sale was within time and was rightly allowed by the trial Court and the VIth Additional District Judge has committed a manifest error of law in reversing the order of the trial Court and dismissing the petitioner's application. According to counsel for the petitioner in view of the amendment made in Article 127 of the Limitation Act by Section 98 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as Act No. 104 of 1976) the period of 30 days limitation for filing an application under Rule 89 of Order 21 C.P.C. stood substituted by 60 days and since the date of sale within the meaning of Article 127 of the Limitation Act was 13th January, 1981, when the bid of Respondent No, 3 was accepted by the Court and not 15th December, 1980, when the sale was actually held the application for setting aside the sale as filed on 17th March, 1981, was well within limitation, 14th and 15th March, 1981, being holidays. For the Respondent No. 3 on the other hand it has been submitted by her counsel that the date of sale in the instant case was not 13th January, 1981, but 15th December, 1980 inasmuch as on that date the highest bid of Respondent No. 3 was accepted, she was declared the purchaser and was required to deposit 25% of the purchase money which she did. It has also been submitted by him that even if for the sake of argument 13th January, 1981, and not 15th December, 1980, may be taken as the date of sale, notwithstanding the fact that the application filed by the petitioner under Rule 89 of Order 2 C.P.C. being within 60 days from 13th January, 1981, was still liable to be dismissed inasmuch as the petitioner had failed to deposit the requisite amount contemplated by the said rule within 30 days as enjoined by sub -rule (2) of Rule 92 of October 21 C.P.C. even from 13th January, 1981.
(2.) TWO questions, therefore, arise for consideration in the present writ petition (1) whether the date of sale in the instant case was 15th December, 1980, or 13th January, 1981, and (2) whether the application filed by the petitioner for setting aside the sale under Rule 89 of Order 21 C.P.C. was liable to be dismissed inasmuch as the requisite deposit contemplated by the said rule had not been made within 30 days even from 13th January, 1981. We propose to consider the second question first. It has been urged by counsel for the petitioner that since the period of limitation to file an application under Rule 89 of Order 21 C.P.C. was extended from 30 days to 60 days by Section 98 of Act No. 104 of 1976 but the words "thirty days" remain unaltered in sub -rule (2) of Rule 92 of Order 21 C.P.C. and since an application under Rule 89 of Order 21 C.P.C. could be filed only on the requisite amount contemplated by the said sub -rule being deposited in anomalous and inconsistent situation had been created and a harmonious construction deserves to be placed on the two provisions, namely, sub -rule (2) of Rule 92 of Order 21 C.P.C. contemplating deposit of the requisite amount within 30 days on the one hand and Article 127 of the Limitation Act prescribing 60 days as period of limitation for filing an application under Rule 89 of Order 21 C.P.C. on the other, in a manner which may serve the purpose of extending the period of limitation under Article 127 of the Limitation Act from 30 days to 60 days and not defeat it. Counsel for Respondent No. 3 on the other hand has pointed out that the language of sub -rule (2) of Rule 92 of Order 21 C.P.C. was plain and unambiguous and has submitted as a proposition of law that unless there is any ambiguity and anomaly in the provision which comes up for consideration or unless that provision is inconsistent with some other provision recourse to external aids of interpretation can be taken and the said provision has to be interpreted according to its plain grammatical meaning. He has cited various decided cases in support of this submission. Since the legal position in this behalf is well settled and is as has been submitted by counsel for the respondent we find it unnecessary to refer to those cases.
(3.) THE question which, therefore, has to he considered is as to what is the position of the relevant provisions which fall for consideration in the instant case. When for allowing an application under Rule 89 of Order 21 C.P.C. the only fact which is to be ascertained is whether the amount contemplated by the said rule has or has not been deposited and the application for setting aside the sale under this rule can be filed only on such deposit being made any provision which has the effect of prescribing the period within which this deposit is to be made prescribes the limitation not only for making the deposit but virtually and for all intents and purposes also for filing the application to set aside the sale on deposit of the requisite amount. The reason for taking this view is obvious. Prescribing a period of 60 days for filing an application under Rule 89 of Order 21 Cr.P.C. and retaining 30 days as the period of limitation for making the deposit virtually amounts to cutting down the period of limitation to the period within which the deposit is to be made, namely, 30 days, inasmuch as if the deposit had not been made within 30 days the application for setting aside the sale even if filed within 60 days, the period prescribed in this behalf, will have to be dismissed on the ground that the deposit had not been made within 30 days. The enlargement of the limitation for making an application to set aside the sale under 89 of Order 21 C.P.C. from 30 days to 60 days will thus be rendered nugatory. There can be no manner of doubt that in order to find our the true legal position in this behalf the two provisions referred to above cannot be read in isolation and have to considered togetheR.In view of what has been pointed out above it is, therefore, apparent that when the two provisions referred to above are read together a situation comes into existence which not only creates an anomaly and ambiguity but also has the effect of virtually prescribing two inconsistent sets of limitation for filing an application for setting aside a sale under Rule 89 of Order 21 C.P.C. one of 30 days in view of sub -rule (2) of Rule 92 of Order 21 C.P.C. and the other of 60 days as prescribed in Article 127 of the Limitation Act. In this view of the matter a case has been made out for taking recourse to external sides of interpretation.;