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Wednesday, December 18, 2013

Limitation Act Art.127 - Or.21, rule 89 - time 60 days - beyond 60 days not maintainable - Delay petition is not maintainable as sec. 5 of Limitation Act not applies =Penugonda Varalakshmi ..PETITIONER Nallamala Lakshmi Tayaru and others.. RESPONDENT = Published in / Cited in judis.nic.in/judis_andhra/filename=10622

Limitation Act Art.127 - Or.21, rule 89 - time 60 days - beyond 60 days not maintainable - Delay petition is not maintainable  as sec. 5 of Limitation Act not applies =
the petitioner filed an execution
application under Order XXI Rule 89 of the Code for setting aside the auction.
However, as the said application could not be filed within the time of sixty
days allowed under law, the petitioner had filed E.A.No.104 of 2010 under
Section 5 of the Indian Limitation Act for condonation of the delay of (281)
days in filing the aforementioned application for setting aside the court
auction sale of the E.P schedule property.  
"In Mohan Lal v. Hari Prasad Yadav and Others1 the Supreme Court has held thus:
"It is settled law that an application to set aside sale under Order 21 Rule 89
of the Code is governed by Article 127 of the Limitation Act. Section 5 of the
Limitation Act has no application on its own wordings".
The Supreme Court had also considered 
whether time can be extended under Section  
148 of the Code of Civil Procedure and held that Section 148 of the Code of
Civil Procedure would not be applicable for the reason that the time for making
an application under Rule 89 of Order 21 of the Code is not fixed by the Court.
7.      Therefore, the finding of the Court below brooks no interference in view
of the ratio in Mohan Lal v. Hari Prasad Yadav and Others (1 supra). In the
light of the aforementioned finding there is no need to examine whether the
cause shown for condonation of the delay is sufficient or not.
8.      In the result, the Civil Revision petition is dismissed.

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI          

Civil Revision Petition No.2588 of 2012

29-11-2013

Penugonda Varalakshmi ..PETITIONER  

Nallamala Lakshmi Tayaru and others..   RESPONDENT    

Counsel for the petitioner:Sri Y.V.Ravi Prasad

Counsel for the respondent No.2:Sri Naram Nageswara Rao

<Gist:

>Head Note:

? CITATIONS:
(1994) 4 SCC 177

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI          

Civil Revision Petition No.2588 of 2012

ORDER:

        This Civil Revision Petition is directed against the orders dated
30.01.2012 of the learned Senior Civil Judge, Bhimavaram dismissing the
application in E.A.No.104 of 2010 in E.P.No.55 of 2005 in O.S.No.45 of 2000
filed under Section 5 of the Limitation Act to condone delay of 281 days in
filing petition under Order XXI Rule 89 of the Code of Civil Procedure ('the
Code', for short).

2.      The facts, which are necessary for disposal of this revision, in brief,
are as follows:
`The property said to be of the revision petitioner/1st Judgment
debtor (`the petitioner', for short) was sold in an auction held on 24.03.2009
by the Court of execution.  
However, the petitioner filed an execution
application under Order XXI Rule 89 of the Code for setting aside the auction.
However, as the said application could not be filed within the time of sixty
days allowed under law, the petitioner had filed E.A.No.104 of 2010 under
Section 5 of the Indian Limitation Act for condonation of the delay of (281)
days in filing the aforementioned application for setting aside the court
auction sale of the E.P schedule property.
The 1st respondent/Decree Holder
(`the 1st respondent', for short) and the auction purchaser/2nd respondent (`the
2nd respondent', for short)
resisted the application filed by the petitioner. 
On merits, the trial Court had
dismissed the application seeking condonation of delay filed by the petitioner.
Aggrieved of the said orders, the present revision petition is preferred'.

3.      In support of the request for condonation of delay, the petitioner had
urged as under: `
The petitioner is an uneducated sick woman having no worldly
wisdom. She is not acquainted with court matters.  Her husband is also an
uneducated person.
The Decree Holder having obtained a decree in a suit for
recovery of money sought attachment of the property of the petitioner and
brought the same to sale for realization of the decree debt.  The property was
sold in a Court auction on 24.03.2009. 
The petitioner suffered viral hepatitis,
i.e., jaundice from 15.03.2009 to 20.02.2010 and, therefore, did not attend the
court auction sale on 24.03.2009.  She had filed a certificate issued by the
doctor certifying her illness.  
Therefore, she could not also meet her advocate.
The said fact of sale came to the knowledge of the petitioner on 19.02.2010.
The petitioner is ready and willing to pay or deposit the debt due to the Decree
Holder besides the necessary amounts payable for setting aside the court
auction.  
In the circumstances, the petitioner could not file the application
seeking permission to deposit the decree debt though the said application has to
be filed within sixty days from the date of the auction. 
Hence, the petitioner
had filed E.A.No.104 of 2010 for condonation of the delay in filing the
application under Order XXI Rule 89 read with Section 151 of the Code.
There are
no wilful laches on the part of the petitioner in not filing the above said
application in time.'   The 1st respondent and the 2nd respondent resisted the
said application mainly on the grounds that Section 5 of the Indian Limitation
Act has no application to the instant proceedings and that the delay is not
properly explained and that no explanation for the delay from 20.02.2010 to
02.03.2010, i.e., till the date of filing of the application is not at all
explained and that the cause mentioned is not correct and that the petition is
filed to drag on the matter.

4.      Now, the points for determination are -
"Whether the application in E. A.
No. 104 of 2010 filed under Section 5 of the Indian Limitation Act is not
maintainable? And, 
whether the petitioner had not made out valid and sufficient
grounds for condonation of the delay in filing the application under Order XXI
Rule 89 read with Section 151 of the Code?"

5.       The facts which are necessary for consideration are already stated supra,
in detail.  In the first place, an application to set aside the sale of
immovable property sold in execution has to be filed within sixty days under
Article 127 of the Limitation Act.
Article 127 of the Limitation Act reads as under:-

Further, making of the deposit of the sale amount (i.e., the amount specified in
the proclamation of sale) within sixty days from the date of sale is a condition
precedent for maintaining an application under the Rule 89 of the Code.  
Mere
filing of an application under Order XXI Rule 89 of the Code without making the
deposit is not enough; and such an application made without compliance of the
condition precedent for maintaining an application, is liable to be rejected. Be
it noted that an application under Rule 89 can be filed and the amounts
specified in Rule 89(1) can be deposited within 60 days of the date of auction
sale.          
Rule 92(2) was also amended to that effect by the amending Act 22
of 2002, which came into effect on 01.07.2002. 
Nonetheless, the petitioner
herein did not deposit the entire E.P. amount (i.e., the amount specified in the
proclamation of sale) and 5% of purchase money within the time allowed under
law.  
The amount was deposited belatedly after filing of this Revision petition
and pursuant to the directions that were issued by this Court in this Revision
Petition. 
Thus in the case on hand, admittedly, the deposit has not been made by
the petitioner when the application for condonation of delay and the other
application under Order XXI Rule 89 of the Code were filed, apart from the fact
that the application under Order XXI Rule 89 of the Code was not filed within
the time allowed under law.
On this ground alone, the judgment
debtor/petitioner is not entitled to any relief under the said Rule 89.
6.      Be that as it may, the Court of execution by the impugned orders had
dismissed the application of the petitioner mainly on the ground that section 5
of the Limitation Act is not applicable.
The said finding is also assailed before this Court.
"In Mohan Lal v. Hari Prasad Yadav and Others1 the Supreme Court has held thus:
"It is settled law that an application to set aside sale under Order 21 Rule 89
of the Code is governed by Article 127 of the Limitation Act. Section 5 of the
Limitation Act has no application on its own wordings".
The Supreme Court had also considered 
whether time can be extended under Section  
148 of the Code of Civil Procedure and held that Section 148 of the Code of
Civil Procedure would not be applicable for the reason that the time for making
an application under Rule 89 of Order 21 of the Code is not fixed by the Court.
7.      Therefore, the finding of the Court below brooks no interference in view
of the ratio in Mohan Lal v. Hari Prasad Yadav and Others (1 supra). In the
light of the aforementioned finding there is no need to examine whether the
cause shown for condonation of the delay is sufficient or not.
8.      In the result, the Civil Revision petition is dismissed. There shall be no
order as to costs.  Miscellaneous petitions, if any, pending in this revision
shall also stand dismissed.
_____________________  
M.SEETHARAMA MURTI, J    
29th NOVEMBER 2013

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