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Report No. 139

3.5. Later Supreme Court judgment of 1990, overruling earlier judgment of 1986.-

The matter again came up before the Supreme Court in P.K. Unni v. Nirmala Industries, AIR 1996 SC 933 (936, 937), paras. 11-16 (May): (1990) 2 SCC 378. A three-Judge Bench of the Court overruled the earlier decision of the court in Basayantappa's case (supra). The Supreme Court observed:-

"11. The words of the statutes being clear, explicit and unambiguous, there is no scope to have recourse to external aid for their construction. Nevertheless in deference to the arguments of the respondents' counsel, we would refer to the Statement of Objects and Reasons in respect of Clause 102 of the Bill introduced in the Lok Sabha on 8th April, 1974\\Published in the Gazette of India (Extraordinary) Part II, Section 2, dated April 8, 1974] amending Article 127. It states:

"Clause 102. (Amendment of the Schedule to the Limitation Act, 1963).-An 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 thirty 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 thirty 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 sixty 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."

(Emphasis supplied)

The Supreme Court added in para 15:-

"In 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. Nor does the principle in Heydon case [(1584)3 Co Rep. 7a: 76 ER 737] 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 clause. That object was accomplished by prescribing a longer period for filling an application to set aside a sale in execution of a decree. Further more, 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."

(Emphasis added)

While overruling the earlier decision on the aforesaid reasoning, the Supreme Court has declared the law to the effect that while application for setting aside the sale can be made in 60 days the requisite deposit has to be made,in 30 days. However, in the same judgment1, the Supreme Court has observed to the effect that the need for amendment exists, says the court:-

"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, 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. It has, in our view, accomplished what it has set out to achieve. No more or less."

(Emphasis added)

1. P.K. Unni v. Nirmala Industries, AIR 1990 SC 933 (936, 937), paras. 11-16 (May): (1990) 2 SCC 378.

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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