Whether executing court can entertain time-barred application for setting aside a sale?

The executing Court has no jurisdiction to entertain an
application for setting aside a sale after the prescribed
period by invoking Section 148 of the Code or by
applying Section 5 of the Limitation Act.

6. The application under Order 21 Rule 89 of the Code being an application under the provisions of Order 21, Section 5 of the Limitation Act, on its own language, is not applicable specifically.

7. We are thus left with the question whether Section 148 of the Code would be applicable to the present case or not. Again Section 148 of the Code would not be applicable to the present case for the simple reason that the time for making an application under Rule 89 of Order 21 of the Code is riot fixed by the Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2647 of 1984

Decided On: 13.05.1994

Mohan Lal  Vs.   Hari Prasad Yadav and Ors.

Hon'ble Judges/Coram:

Kuldip Singh and Yogeshwar Dayal, JJ.

Citations: 1994 SCC (4) 177, JT 1994 (4) 116

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When application filed by judgment debtor for setting aside auction sale is not maintainable?

 We notice, in this case, there was no reference at all to the provisions of Order 21 Rule 89 in the application filed by the Appellant on 1.12.2010, be that it may, even then the Appellant had not complied with the mandatory requirements of depositing the amount. Clause (a) of Sub-rule (1) of Rule 89 of Order 21 requires the applicant to deposit in Court 5 per cent of the purchase money for payment to the auction purchaser. Deposit of the requisite amount in the Court is a condition precedent or a sine qua non to an application for setting aside the execution of sale and such a amount must be paid within a period specified in the rule and if the deposit is made after the time limit, the application must be dismissed. The deposit made under Rule 89 of Order 21 Code of Civil Procedure should be unconditional and unqualified and the decree holder or the auction purchaser should be able to get the amount at once.

20. We have already indicated that the rule is in the nature of a concession shown to the judgment debtor, so he has to strictly comply with the requirements thereof and a sale will not be set aside unless the entire amount specified in rub-rule (1) is deposited within 60 days from the date of the sale and, if it is beyond 60 days, the Court cannot allow the application. We have already found that the Appellant-judgment debtor did not pay the amount within the stipulated time and he only made an application on 1.12.2010 without depositing the amount and hence the Court cannot entertain such an application and bound to confirm the sale which, in this case, the Court did on 23.10.2010.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8652 of 2012 (Arising out of SLP (Civil) No. 34402 of 2011)

Decided On: 03.12.2012

Ram Karan Gupta Vs. J.S. Exim Ltd. and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Citation: AIR 2013 SC 24

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