Report No. 139

Chapter II

Relevant Statutory Provisions

2.1. Genesis of the controversy.-

The controversy which is the subject-matter of this report arises from certain provisions of the Civil Procedure Code and the Limitation Act which relate to applications to set aside a sale ordered by a court by public auction in execution of a court decree against the judgment-debtor. The point relates to the period of limitation prescribed by law-

(a) for such an application, and

(b) for making the deposit of the amount which is required to accompany the application.

2.2. In the scheme of the Code of Civil Procedure, 1908, such a sale can be set aside under the provisions of Order XXI, rule 89 of that Code, quoted below:-

"89. Application to set aside sale on deposit.-(1) Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court,-

(a) for payment to the purchaser, a sum equal to five per cent. of the purchase-money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to, set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale."

In substance, the application for setting aside the sale must be accompanied by the required amount.