G RAJARETHNA NAIKKAN Vs. P N PARAMESWARA KURUP

JUDGEMENT

(1.) This revision is by the judgment debtor. In execution of a decree for money against him, the respondent decree holder brought the property to sale and purchased the same in court auction. The judgment debtor filed an application under O.21 R.90 of the Code of Civil Procedure for setting aside the sale. That application was filed out of time with the result that the executing court dismissed that application. The judgment debtor filed CMA 243 of 1995 before this court challenging the dismissal of that application. This court by judgment dated 28.3.1996 agreed with the finding of the executing court and affirmed the dismissal of the application under O.21 R.90 of the Code of Civil Procedure. Before this Court an attempt was made to contend on behalf of the judgment debtor that the application for setting aside the sale though out of time as an application under O.21 R.90 of the Code of Civil Procedure was maintainable under S.47 of the Code of Civil Procedure and to be treated as one under that provision. This court noticed that the application in question was made by the judgment debtor only under O..21 R.90 of the Code of Civil Procedure and therefore, this court did not think it necessary or proper to consider whether the application should be directed to be treated as one under S.47 of the Code of Civil Procedure. This court therefore, left open the question whether an application under S.47 of the Code of Civil Procedure at the instance of the judgment debtor was maintainable or not. An argument that even if the application under O.21 R. 90 of the Code of Civil Procedure was barred by limitation, this court as an appellate court had the power to set aside the sale in appropriate cases was rejected by this court by pointing out that such a power may vest in the Supreme Court under Art.142 of the Constitution of India, but is not a power available to this court governed by the Code of Civil Procedure and the Limitation Act. In that judgment, this court also noticed that though the court made an attempt to persuade the decree holder auction purchaser to receive all the amounts due to him under the decree, and to agree to the sale being set aside, he was not amenable to that course and hence this court was not in a position to set aside the sale by consent as well. This decision was sought to be challenged before the Supreme Court by the judgment debtor by filing a petition for Special Leave to Appeal (c) No. 3891 of 1996. By order dated 30.7.1996, the Supreme Court dismissed that petition for Special Leave to Appeal. Thus the attempt of the judgment debtor to get the sale set aside under O.21 R.90 of the Code failed.

(2.) The sale in execution was held on 12.10.1992. The application under O.21 R.90 of the Code of Civil Procedure was filed by the judgment debtor on 14.12.1992. The petition for Special Leave to Appeal arising from that proceeding was dismissed by the Supreme Court on 30.7.1996. On 13.8.1996 within a month of the dismissal of the Application for Special Leave to Appeal by the Supreme Court, the judgment debtor filed EA 268 of 1996 before the executing court under S.47 of the Code of Civil Procedure. That application was obviously even beyond three years of the date of sale. The judgment debtor therefore, sought an exclusion of the time between 14.12.1992 and 30.7.1996 when he claimed that he was bona fide prosecuting his application under O.21 R.90 of the Code of Civil Procedure and if the said period was excluded in terms of S.14 of the Limitation Act, the present application under S.47 of the Code of Civil Procedure was within time. This claim of the judgment debtor was repudiated by the decree holder who contended that S.14 of the Limitation Act had no application, that in any view S.14(2) of the Limitation Act was not attracted to the case on hand, that the application was belated and was liable to be dismissed.

(3.) The executing court held that S.14, 15 of the Limitation Act had no application to the case on hand and the present application was barred by limitation. That court also held that in view of the dismissal of the earlier application under O.21 R.90 of the Code, the judgment debtor was not entitled to put forward the grounds of irregularity and fraud in the publishing and conducting of the sale and that no sufficient ground was made out for setting aside the sale in this case. The executing court , therefore, dismissed the application. This revision is filed by the judgment debtor challenging that order of the executing court. It is contended on behalf of the judgment debtor that the judgment debtor was entitled to the exclusion of the period from 14.12.1992 to 30.7.1996 when he was bona fide prosecuting the application for setting aside the sale under O.21 R.90 of the Code of Civil Procedure and that the application under S.47 of the Code of Civil Procedure was maintainable and the sale was liable to be declared void in the case on hand in view of the failure to comply with the mandatory requirements of O.21 of the Code of Civil Procedure and that it would be unjust and inequitable not to interfere with the sale in this case. The decree holder who had filed a caveat before this court appearing through counsel contended that the finding of the executing court that S.14 of the Limitation Act has no application in this case was correct, that the application under S.47 of the Code of Civil Procedure is not maintainable and that there was no bona fides in the present application.