DAKSHAYINI Vs. MADHAVAN

JUDGEMENT

(1.) Reference has been made to the Division Bench because the learned single Judge who had occasion to hear this case felt that there was anomaly in the provision in O.21 R.92 sub-rule (2) of the Code of Civil Procedure as it now stands despite the amendment of Art.127 of the Limitation Act, 1963 by Civil Procedure Code (Amendment) Act 104 of 1976. A person who seeks to set aside a sale may do so under the provisions of O.21 R.89, R.90 or R.91. The right under O.21 R.89 is to be exercised by applying to have the sale set aside on deposit into court of amount sufficient to pay to the decree holder besides the commission of 5% to the auction purchaser. The Code of Civil Procedure did not specify the time within which applications have to be made under O.21 R.89, 90 or 91. That was provided in Art.127 of the Limitation Act. The period was 30 days from the date of sale. When the Code of Civil Procedure was radically amended by Act 104 of 1976 the period for setting aside the sale which was 30 days earlier was enlarged to 60 days by amending the Limitation Act. Such amendment was made to Art.127 of the Limitation Act. Naturally therefore after that amendment the period available for setting aside a sale was 60 days. So if a person deposits the amount as contemplated by O.21 R.89 and applies for setting aside the sale be need make the application within 60 days of the date of sale. The deposit contemplated under O.21 R.89 was to be made within 30 days of the date of sale as provided in O.21 R.92(2) of the Code. In cases where the amount deposited under R.89 was found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor such deficiency could be made good within such time as may be fixed by the court. The deposit contemplated by O.21 R.89 to be made within the time specified in R.92(2) was a condition precedent to setting aside the sale. Evidently the period of 30 days contemplated under O.21 R.92(2) was the period corresponding to the 30 days under Art.127 of the Limitation Act as it stood earlier. That meant that the deposit as well as application bad to be made within 30 days. When this time was sought to be enlarged Art.127 of the Limitation Act was amended. But though a corresponding treatment was required to O.21 R.92(2) that was evidently lost sight of, unless it be that we assume that the legislature wanted two different periods, a period of one month for deposit and two months for application, which of course does not appear to be on the face of it reasonable. It appears to us that it is a very clear case of omission on the part of the legislature to notice that a period corresponding to the period specified in Art.127 had to be stipulated as a period within which deposit is to be made in the provision in O.21 R.92(2) of the Code. The consequence now is that if we read the rule as it stands deposit has to be made within 30 days and application has to be made within 60 days In the case before us deposit and application were made within 60 days Deposit was not made within 30 days. Consequently the application stands dismissed by the order of the court below. That is the order challenged in this revision.

(2.) The function of the courts is to apply the law as it stands. May be the court notices the anomalies. But it is not for the court to rewrite the law even though the court considers the provisions as they stand to be unreasonable. Of course courts do resort to the device of reading words into the provisions of the statute purporting to bring it in accord with what is evidently the intention of the legislature. But where it is evident that there is an omission on the part of the legislature to make an amendment which it ought to have made, even if such omission appears to be inadvertent, the courts cannot supply the omission, for, then it would be arrogating to itself legislative functions which it does not possess. The instance before us is one such where it is not possible to read the provision differently, for, the provision in O.21 R.92(2) was one in existence all along and there can be no doubt that when the legislature enacted that rule it was contemplated as a rule providing for a period of 30 days. There can also be no doubt when the legislature in Act 104 of 1976 amended Art.127 of the Limitation Act that was intended to change the period of limitation for filing an application under O.21 R.89, 90 or 91 from 30 days to 60 days. If this be the context we cannot read the period of 30 days as 60 days on any approach. We can only point out the anomaly and say that the law works inequitably perhaps because of the omission of the legislature to notice the need to amend the provision in O.21 R.92(2). We can only call the attention of the Government to the need for moving immediately for amending the rule. Consequently while we dismiss this revision we alert the Central Government to the need of treating O.21 R.92(2) by enlarging the period for deposit from 30 days to 60 days to bring it in accord with R.127 of the Limitation Act. A copy of this order will be sent to the Law Department of the Central Government besides furnishing a copy to the Central Government Pleader for onward transmission.