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Report No. 139

3 4. Supreme Court Judgment (1986).-

Later, in 1986, the Supreme Court1 also noted the anomaly and observed as order:-

"2. The failure to deposit the amount confirmation of sale under Order XXI, rule 1(1) and thereupon the sale becomes, absolute. The limitation prescribed for an application under Order XXI, rule 89 was thirty days from the date of sale under Schedule I, Article 166 of the Limitation Act, 1908, now replaced by Article 127 of the Limitation Act, 1963. The words "may apply to have the sale set aside on his depositing in court" etc. show that not only the application, but also the deposit, should be made within thirty days from the date of sale.

It is not enough to make the application within thirty days. Nor is it enough to make the deposit within thirty days. Both the application and the deposit must be made within thirty days from the date of sale. Article 127 of the Limitation Act, 1963 has now been amended by Act 104 of 1976 and the 'words sixty' days have now been substituted for the words 'thirty days'. As a result of the amendment, the limitation for an application to set aside a sale in execution of a decree, including any such application by a judgment-debtor under Order XXI, rule 89 or rule 90 is therefore sixty days now.

Such being the law, there is need for an appropriate amendment of sub-rule (2) of rule 92 of the Code. Under Order XXI, rule 89 as it now exists, both the application and the deposit must be made within thirty days of the sale. The failure to make such deposit within the time allowed at once attracts the consequences set forth in sub-rule (2) of rule 92. This is an unfortunate state of things an Parliament must enact the necessary change in law."

The observations2 made by the Kerala High Court in 1981 were reiterated with approval by the Supreme Court3 in the following words:-

"3. The learned single Judge has brought about the inconsistency between sub-rule (2) of rule 92 of Order XXI of the Code and Article 127 of the Limitation Act and suggested that steps should be taken to remove this inconsistency. We fully endorse the view expressed by the learned single Judge."

(Emphasis added)

The Supreme Court, however, held that the High Court was justified in reconciling the inconsistency and setting aside the sale though the deposit was made beyond 30 days but within 60 days.

1. Basavantappa v. G.N. Dharwadkar, (1986) 4 SCC 273.

2. Dakshayini v. Madhavan, AIR 1982 Ker 126 (127), para. 2.

3. Basavantappa v. G.R. Dharwadkar, (1986) 4 SCC 273, para. 3.

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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