B NAROTAM DAS Vs. BBHAGWAN DASS

JUDGEMENT

(1.) This is a judgment-debtor's appeal against the order passed by the Court below refusing to set aside a sale.

(2.) The decree-holder in execution of his decree against the judgment-debtor put to sale share in two villages and purchased them himself on 20 September 1932. The judgment-debtor filed objections challenging the sale on various grounds. They have all been rejected by the learned Subordinate Judge. The present appeal has been preferred against that dismissal.

(3.) We have mentioned above that the auction-sale took place on 20 September 1932. The application asking for setting aside the sale under the provisions of Rule 90, Order 21, Civil P.C., should have been made within a period of thirty days from the date of the sale. It appears however as found by the Court below, that by mistake the clerk of counsel for the judgment-debtor presented this application in a wrong Court. The execution case was pending in the Court of the learned Subordinate Judge under whose order the sale had taken place, and so the application for setting aside the sale should have been made to his Court; but by mistake the application was put before the Munsif; and when the mistake was discovered it was returned to the judgment-debtor when it was finally put in the Court of the learned Subordinate Judge. Thus there was a delay of one day. The Court below was asked to condone this one day's delay under the provisions of Section 5 read with Section 14, Limitation Act. The learned Subordinate Judge refused this prayer. It was argued that the learned Subordinate Judge was wrong in not condoning the delay under Section 5, Limitation Act. We are of opinion that on this point the decision of the learned Subordinate Judge cannot be disturbed. In our opinion, Section 5, Limitation Act, does not apply to an application made under Rule 90, Order 21, Civil P.C. An application under Rule 90, Order 21 is governed by Art. 166, Limitation Act. This view has been taken in a large number of cases, and we are not prepared to dissent from it. These cases are all discussed in Mitra's Law of Limitation, Vol. 2, p. 1872 (6 Edition).