Vs. Jammulu Ramulu & Ors  Insc 411 (23 August 2001)
K.T. Thomas, R.C. Lahoti, N. Santosh Hegde & S.N. Variava S. N. Variava, J.
question raised in this Appeal is whether the period of limitation for making
deposit, in an application to set aside sale of immovable property under Order
XXI Rule 89 of the Code of Civil Procedure, is 30 days from the date of sale
(being the period prescribed in Order XXI Rule 92(2) C.P.C.) or 60 days from
the date of sale (as prescribed in Article 127 of the Limitation Act).
Briefly stated the facts are as follows:
On 25th February, 1980 a decree was obtained in a suit
based on a promissory note executed on 21st January, 1972. That decree was put into execution
and the property of the Judgment-debtor was attached and put up for sale. The
sale was held on 22nd
4. On 21st January, 1983 i.e. on the 59th day after the date
of sale, an application was filed under Order XXI Rule 89 C.P.C. and the
prescribed amount was also deposited.
5. On 11th March, 1983 the executing Court dismissed the
application on the ground that the deposit was not made within 30 days as
prescribed under Order XXI Rule 92(2) C.P.C. The Judgment-debtor filed an
Appeal which was allowed on 3rd September, 1983. The Order of the executing Court was set aside. The application of the
Judgment-debtor was allowed and the sale was set aside.
Civil Revision Petition filed by the Auction Purchaser was dismissed by the
High Court of Andhra Pradesh on 1st February, 1990. It was held that Courts had to harmonise the two
provisions and interpret the same having regard to the intention of the
legislature. It was held that the Judgment Debtor should be given the benefit
of the enlarged period of limitation under Art. 127 of the Limitation Act.
must be mentioned that in coming to the above conclusion the Andhra Pradesh
High Court relied upon a Judgment of this Court in the case of Basavantappa v Gangadhar
Narayan Dharwadkar & Anr. reported in (1986) 4 S.C.C. 273. In that case it
was held that the two provisions had to be harmoniously construed. In Basavantappas
case this Court had endorsed the view of the Madras High Court, in the case of Thangammal
& Ors. v K. Dhanalakshmi and Anr. reported in AIR (1981) Madras 254 that there was an inconsistency
in these two provisions and that the legislature should take steps to remove
8. On 20th February, 1990 this Court in the case of P.K. Unni
v. Nirmala Industries and Ors. reported in (1990) 2 SCC 378 held that the
limitation period for making deposit in an application for setting aside sale
under Order XXI Rule 89 is 30 days from the date of sale as prescribed under
Order XXI Rule 92(2). It was noted that under Article 127, Limitation Act, 1963
the period for making an application for setting aside the sale was 30 days. It
was noted that, in 1974, the Limitation Act was amended and the period of
Limitation to file an application to set aside sale was extended from 30 days
to 60 days. This Court noticed that the Statement of Objects and Reasons, in
extending the period to 60 days, was as follows:
application to set aside a sale in execution of a decree on deposit under Rule
89 of Order XXI is required to be made within 30 days from the date of the
sale. Experience shows that this period is too short and often causes hardship
because the judgment-debtors usually fail to arrange for moneys within that
time. Banks usually take more than 30 days to sanction loans and advances. In
the circumstances, Entry 127 of the Schedule to the Limitation Act is being
amended to increase the period of limitation to 60 days in respect of an
application to set aside a sale in execution of a decree. This increase in the
period of limitation will not affect the purchaser because five per cent of the
purchase money is required to be paid to him. The advantage of the increased
period of limitation will also be available to an application under Rule 90 or
Rule 91 of Order XXI to set aside a sale in execution of a decree. In view of
the increase in the period of limitation, confirmation of a sale will have to
await the expiry of the increased period of limitation." It was however
held that Order XXI Rule 92(2) C.P.C. and Article 127, Limitation Act operated
in different fields and that there was no repugnancy between the two. It was
held that even though the period under Article 127, Limitation Act was enlarged
that period had no bearing on the time allowed for making a deposit. This Court
held as follows:
The court must indeed proceed on the assumption that the legislature did not
make a mistake and that it intended to say what it said: See Nalinakhya Bysack
v. Shyam Sunder Haldar [1953 SCR 533, 545 : AIR 1953 SC 148]. Assuming there is
a defect or an omission in the words used by the legislature, the court would
not go to its aid to correct or make up the deficiency. The court cannot add
words to a statute or read words into it which are not there, especially when
the literal reading produces an intelligible result. No case can be found to authorise
any court to alter a word so as to produce a casus omissus: Per Lord Halsbury,
Mersey Docks and Harbour Board v. Henderson Brothers. [(1888) 13 AC 595, 602: 4
cannot aid the legislature's defective phrasing of an Act, we cannot add and
mend, and, by construction, make up deficiencies which are left there":
Crawford v. Spooner [(1846) 6 Moore PC 1, 8, 9: 4 MIA 179].
Where the language of the statute leads to manifest contradiction of the
apparent purpose of the enactment, the court can, of course, adopt a
construction which will carry out the obvious intention of the legislature. In
doing so "a judge must not alter the material of which the Act is woven,
but he can and should iron out the creases.": Per Denning, L.J., as he
then was, Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155, 164]. See
the observation of Sarkar, J. in M. Pentiah v. Muddala Veeramallappa [(1961) 2
SCR 295, 314: AIR 1961 SC 1107].
the construction of the relevant provisions, we see no contradiction or
ambiguity or defect or omission. We see no merit in the argument that Article
127 must override Rule 92(2) of Order XXI in respect of limitation. We view
both the provisions as prescriptive of time for different purposes, and of
equal efficacy and particularity. The maxim generalia specialibus non derogant
has no relevance to their construction.
does the principle in Heydon case [(1584) 3 Co Rep 7a: 76 ER 637] offer any
help on the point in issue. The mischief which the legislature had set out to
remedy by amendment of Article 127 is what is stated in the objects and reasons
object was accomplished by prescribing a longer period for filing an
application to set aside a sale in execution of a decree. Furthermore, as
already seen, by amendment of Rule 92(2) of Order XXI an opportunity was
accorded to the depositor to make good the deficiency in the deposit made by
him due to arithmetical or clerical mistake on his part. In no other respect
did the legislature evince an intention to extend the period prescribed for
making the deposit. It would perhaps have been better, more logical, reasonable
and practical, as stated by the Kerala High Court in Dakshayini v. Madhavan
[AIR 1982 Ker 126: 1981 Ker LT 861], to enlarge the period for making the
deposit so as to make it identical with that prescribed for making the
application, and such extended period would have better served the object of
the amendment, namely, ameliorating the plight of the judgment-debtor, but such
are matters exclusively within the domain of legislation by Parliament and the
court cannot presume deficiency and supply the omission. The legislature did
not do more than what it did.
has, in our view, accomplished what it had set out to achieve.
When this Special Leave Petition reached hearing on 8th September 1995 another three Judge Bench of this Court did not agree with
the view expressed in P.K. Unni's case. That Bench, therefore, referred the
matter to a five Judge Bench for considering the correctness of the view taken
in P.K. Unni's case. The Order dated 8th September, 1995 reads as follows:
three-member bench of this Court in P. K. Unni vs. Nirmala Industries &
others 1990(2) SCC 378 has held that time for making a deposit in terms of Rule
89 Order XXI C.P.C. is 30 days and Article 127 of the Limitation Act, 1963
prescribing a period of sixty days for making an application under Rule 89 has
no relevance to the prescribed time for making the deposit, and that neither
provision has any effect on the other as to time.
appears to us however that these two periods of limitation are two facets of
the same coin. The difference, even though artificial, has to be resolved in
permitting the larger period of time to achieve the objective. We, on our part,
find it difficult to bypass this three-judge bench decision. We, therefore,
refer this matter to a five-judge bench for considering the correctness of the
view taken in that case and for the purpose direct that the papers of this case
be laid before Hon'ble the C.J.I. for constituting a five-judge bench. It may
be mentioned that though the matter is short, it is likely to effect a large
number of cases in the subordinate courts. It would therefore solicit early
fixation." Under these circumstances this matter has come before this
Bench of five Judges for deciding the question mentioned above.
Mr. Narasimha relied heavily on P.K. Unni's case. He submitted that even though
the legislature intended to extend time to make deposit, they did not do so. He
frankly admitted that if the language of the statute leads to a manifest
contradiction of the apparent purpose of the enactment, the Court could adopt a
construction which would carry out the obvious intention of the legislature. He
however submitted that in doing so the Court could not alter the provision. He
submitted that in the construction of the two provisions i.e. Order XXI Rule
92(2) C.P.C. and Article 127, Limitation Act, there was no contradiction or
ambiguity or defect or omission. He submitted that both the provisions
prescribed time for different purposes.
submitted that Art. 127, Limitation Act prescribed a time for filing an
application, whereas Order XX1 Rule 92(2) C.P.C. prescribed a time for making a
deposit. He submitted that the two provisions operated in different fields. He
submitted that in effect the legislature did not extend the period prescribed
for making the deposit even though they extended time for making an
application. He submitted that it would have been more in keeping with their
intention, as seen from the Statement of Objects and Reasons, if the
legislature had enlarged the period for making the deposit so that it was
identical to the one prescribed for making the application. He submitted that
this was a matter exclusively within the domain of legislation by Parliament
and the Court could not presume deficiency and supply the omission.
Mr. Bisaria has fully supported the view taken in the impugned Judgment. He
relied on the decision of this Court in Basavantappas case and submitted that
there was an apparent conflict. He submitted that the Courts must give an
interpretation which would give effect to the intention of the legislature. In
support of this submission he cited the cases of Thangammal and others v K. Dhanalakshmi
and another reported in AIR (1981) Madras 254, Pathummakutty and etc. v Thekkechalil
Kathiyumma and another etc. reported in AIR (1990) Kerala 286 and The Court
Liquidator vs. Bimalendu Das and others reported in AIR (1985) Calcutta 382.
Mr. Bisaria further submitted that Order XXI Rule 92(2) C.P.C. does not
prescribe any period for deposit of monies but only provides that if the
deposit is made within 30 days and an application filed then the Court would
have no discretion to refuse to set aside sale. He submits that by extending
the period of time to file an application the legislature has now left it to
the discretion of the Court, to allow or disallow, the application if the
deposit is not made within 30 days.
have considered the submissions made by the parties. The settled principles of
interpretation are that the Court must proceed on the assumption that the
legislature did not make a mistake and that it did what it intended to do. The
Court must, as far as possible, adopt a construction which will carry out the
obvious intention of the legislature. Undoubtedly if there is a defect or an
omission in the words used by the legislature, the Court would not go to its
aid to correct or make up the deficiency. The Court could not add words to a
statute or read words into it which are not there, especially when the literal
reading produces an intelligible result. The Court cannot aid the legislature's
defective phrasing of an Act, or add and mend, and, by construction, make up
deficiencies which are there.
the rationale in P. K. Unnis case is accepted there is a manifest
contradiction. As seen the object and intention in amending Article 127,
Limitation Act was to extend time to make deposit. This will not have been achieved
if the rationale in P. K. Unnis case is accepted. If Order XXI Rule 92(2)
C.P.C. and Art 127, Limitation Act operate in different fields then it would
imply that the Legislature had undergone a useless formality in extending the
period of limitation to file an application. Order XXI Rule 89 C.P.C. provides
that an application to set aside sale can be made if the amounts mentioned
therein are deposited. Thus the deposit has to precede or be made at the same
time as the application. There would thus be no purpose in permitting filing of
an application after 30 days if the deposit had to be made within 30 days and
the legislature would have undertaken a useless formality.
plain reading of Order XXI Rule 92 C.P.C. shows that the Court could either
dismiss an application or allow an application. Order XXI Rule 89 C.P.C.
prescribes no period either for making the application or for making the
deposit. The Limitation Act also prescribes no period for making a deposit.
However Article 127, Limitation Act prescribes a period within which an
application to set aside a sale should be made. Earlier, this was 30 days, now
it has been enhanced to 60 days. Unless there was a period prescribed for
making a deposit, the time to make the deposit would be the same as that for
making the application. This is so because if an application is made beyond the
period of limitation, then a deposit made at that time or after that period
would be of no use.
Normally, when the legislature wishes to prescribe a period for making a
deposit, it does so by using words to the effect "No deposit shall be made
after days" or "a deposit shall be made within . days" or
"no application will be entertained unless a deposit is made within ..days".
Order XXI Rule 92(2) C.P.C. does not use any such expressions.
relevant portion of Order XXI Rule 92(2) C.P.C. reads as follows :
such application is made and allowed, and where, in the case of an application
under Rule 89, the deposit required by that rule is made within 30 days from
the date of sale the Court shall make an order setting aside the sale."
Thus Order XXI Rule 92(2) C.P.C. is only taking away discretion of the Court to
refuse to set aside the sale where an application is made and allowed and the
deposit has been made within 30 days from date of sale. It is thus clear that
Order XXI Rule 92(2) C.P.C. is not prescribing any period of limitation within
which a deposit has to be made.
Viewed in this context the intention of the legislature in extending the period
under Article 127 Limitation Act may be seen. It is very clear from the
Statement of Objects and Reasons, which have been set out hereinabove, that the
period under Article 127 Limitation Act was extended from 30 days to 60 days in
order to give more time to persons to make deposits. The legislature has noted
that the period of 30 days from the date of sale was too short and often caused
hardships because Judgment-debtors usually failed to arrange for moneys within
that period. The question then would be whether by merely amending Article 127
Limitation Act the legislature has achieved the object for which it increased
the period of limitation to file an application to set aside sale.
Having given our careful consideration to the question, we are of the opinion
that there is no anomaly and that there are no different periods of limitation
for making deposits and/or filing an application for setting aside the sale. It
is by virtue of Order XXI Rule 89 C.P.C. that an application for setting aside
a sale and a deposit can be made. Order XXI Rule 89 C.P.C. does not prescribe
any period within which the application is to be made or deposit is to be made.
All that Order XXI Rule 92(2) provides is that if the deposit is made within 30
days from the date of sale and an application is filed then the Court would
have no discretion but to set aside the sale. That does not mean that if the
deposit is made after 30 days the Court could not entertain the application. If
the deposit is made beyond the period of 30 days, but within the period of 60
days, then it will be within the discretion of the Court whether or not to
grant the application. Thus, an application can be made within the period
prescribed under Article 127, Limitation Act.
application can be made within 60 days and, as stated above, no period for
making a deposit is prescribed under Order XXI Rule 92(2) the deposit can also
be made within 60 days. In our view, therefore, the view expressed in P.K. Unni's
case that Order XXI Rule 92(2) C.P.C. prescribes a period of limitation for
making a deposit is not correct.
this view of the matter, we see no merits in the Appeal. We see no infirmity in
the impugned Order. The Appeal stands dismissed. There will be no Order as to
SANTOSH HEGDE) .J.
VARIAVA) August 23, 2001.