PATHUMMAKUTTY Vs. THEKKECHALIL KATHIYUMMA

JUDGEMENT

(1.) One of these revisions has been referred to the Division Bench to determine the main point whether an application under O.21 R.89 C.P.C. (for short 'the Code') is maintainable when the required deposit was after 30 days but was within 60 days of the sale. Since the same question is involved in the other revision also, we heard both the revisions together. Art.127 of the Limitation Act (as it stood originally) provided 30 days' time for making the application to set aside sale in execution of decree. It was subsequently amended as 60 days. A Division Bench of this Court in Dakshayini v. Madhavan ( 1981 KLT 861 ) took the view that such an application is not maintainable. The Division Bench held that deposit envisaged in R.89 being a condition precedent for setting aside the sale, the same has to be made within 30 days as provided in O.21 R.92(2) of the Code. Subsequently R.92(2) was amended by the High Court and the period of deposit is enlarged to 60 days. It is contended that the amendment has no retrospective affect and hence the deposit made after 30 days in this case, though within 60 days, will not help the applicant.

(2.) The facts in the first case relevant for the revisions are the following: In a final decree for partition, a certain plot of land was allotted to the share of the revision petitioner and his brother jointly. The decree holder was allowed to realise a certain amount from one of them. The decree holder attached the right of the judgment debtor in the aforesaid plot and brought it for sale, and the decree holder himself bid it on 25-11-1981. The revision petitioner filed an application on 18-1-1982 for setting aside the sale by making the deposit after 30 days of the sale. The execution court allowed the application. But the District Court, in appeal, dismissed the application by allowing the appeal. Thus the petitioner has filed C.R.P. 3506/1983.

(3.) The brief facts relating to C.R.P. 171 of 1982 are: in execution of a money decree a property was sold in court auction. The revision petitioner filed an application under O.21 R.89 for setting aside the sale-claiming right over a portion of the property sold. There also the deposit was made beyond 30 days but within 60 days of the sale. Execution Court dismissed the application; and the District Court confirmed it in appeal.