THANGAMMAL AND ORS. Vs. K. DHANALAKSHMI AND ORS.

JUDGEMENT

(1.) This appeal involves an interesting question of law arising out of two inconsistent provisions, one occurring in the Limitation Act and the other occurring in the Code of Civil Procedure.

(2.) The Appellants herein were the judgment -debtors in Original Suit No. 244 of 1961 on the file of the Sub -Court, Coimbatore. The decree in the said suits was put in execution in Execution Petition No. 281 of 1977 and the Appellants' properties had been sold in court auction on 21st January, 1977 for a sum of Rs. 45,060. The applicants came forward with a petition in Execution Application No. 202 of 1978 on 24th January, 1978 to set aside the sale on depositing the entire decree amount, commission and poundage under Order XXI, Rule 89 of the Code of Civil Procedure.

(3.) The said application for setting aside the sale was opposed by the auction purchaser on the ground that the deposit had been made beyond thirty days from the date of the sale and, therefore, it was not maintainable. The decree -holder however, did not file any counter opposing the application. The Court below upheld the objection put forward by the auction -purchaser that as the deposit had not been made within thirty days from the date of the sale as per order XXI, Rule 92(2) of the application for setting aside the sale under Order XXI Rule 89 cannot be maintained. The said decision of the lower Court has been challenged in this appeal on the ground that the time for filing an application under Order XXI Rule 89 having been fixed under Article 127 of the Limitation Act, 1963 as sixty days and the application for setting aside the sale and the deposit of the amount being within the said sixty days, the Court below is in error in dismissing the application as barred by time.