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Report No. 139

3.3. Kerala High Court Judgment.-

This anomaly was pointed out by the High Court of Kerala (Poti, C.J. and Bhaskaran, J.) in Dakshayini v. Madhavan, AIR 1982 Ker 126 (127) (Potti, Ag. C.J. and Bhaskaran, J.) by making the following observations:-

"Naturally therefore after that amendment the period available for setting aside a sale was 60 days. So if a person deposits the amount as contemplated by Order 21, rule 89 and applies for setting aside the sale he need make the application within 60 days of the date of sale. The deposit contemplated under Order 21, rule 89 was to be made within 30 days of the date of sale as provided in Order 21, rule 92(2) of the Code.

In cases where the amount deposited under rule 89 was found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor such deficiency could be made good within such time as may be fixed by the court. The deposit contemplated by Order 21, rule 89 to be made within the time specified in rule 92(2) was a condition precedent to setting aside the sale. Evidently the period of 30 days contemplated under Order 21, rule 92(2) was the period corresponding to the 30 days under Article 127 of the Limitation Act as it stood earlier.

That meant that the deposit as well as application had to be made within 30 days. When this time was sought to be enlarged Article 127 of the limitation Act was amended: But though a corresponding treatment was required to Order 21, rule 92(2) that was evidently lost sight of unless it be that we assume that the legislature wanted two different periods, a period of one month for deposit and two months for application, which of course does not appear to be, on the face of it, reasonable.

It appears to us that it is a very clear case of omission on the part of the legislature to notice that a period corresponding to the period specified in Article 127 had to be stipulated as a period within which deposit it to be made in the provision in Order 21, rule 92(2) of the Code. The consequence now is that if we read the rule as it stands deposit has to be made within 30 days and application has to be made within 60 days. In the case before us deposit and application were made within 60 days. Deposit was not made within 50 days. Consequently the application stands dismissed by the order of the court below. That is the order challenged in this revision.

We can only point out the anomaly and say that the law works inequitably, perhaps because of the omission of the legislature to notice the need to amend the provision in Order 21, rule 92(2). We can only call the attention of the Government to the need for moving immediately for amending the rule Consequently, while we dismiss this revision, we alert the Central Government to the need of treating Order 21, rule 92(2) by enlarging the for deposit from 30 days to 60 days to being it in accord with rule (see Article) 127 of the Limitation Act. A copy of this order will be sent to the Law Department of the Central Government besides furnishing a copy to the Central Government pleader for onward transmission."

(Emphasis added)

Apparently, no appropriate notice was taken of these observations by the Law Department and no remedraf amendment was mooted.

Urgent need to amend Order XXI, Rule 92(2) of the Code of Civil Procedure to remove an anomaly which nullifies the Benevolent Intention of the Legislature and Occasions Injustice to Judgment Back

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