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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Whether in suit by minor for share in joint family property, it is necessary to ask for setting aside sale?

Property Laws – Sale by Guardian – Cancellation of sale deeds – Absence of sanction – Hindu Minority and

Guardianship Act 32 of 1956 (Act), Section 8 – Properties are ancestral properties of Appellant/Plaintiff’s father who

died intestate – 1st Defendant/mother had to sell property for family necessity and for purpose of marriage of 2

Defendant/sister – Property sold to Respondents/Defendants 5 and 4 – On date of sale, Appellant was minor – After

attaining majority, Appellant challenged sale by claiming 5/12th share in suit property – Trial Judge held alienation

void and decreed suit as prayed for – Respondents challenged same – Lower Appellate Court set aside judgment of

Trial Court – Second Appeal – Contention of Appellant that in absence of sanction from Court under Section 8, sale

is voidable at instance of Appellant – Whether Lower Appellate Court legally right in holding that since Appellant

not prayed for setting aside sale of his share, suit is not maintainable – Whether in suit by minor for share in joint

family property, is it necessary to ask for setting aside sale – Whether sale by guardian of minor without obtaining

sanction from Court for sale valid – Held, Section 8(2) of Act specifically states that without previous sanction of

Court, natural guardian shall not alienate – One minor chooses to repudiate sale within limitation, i.e., within 3

years from date of attaining majority, alienation for binding necessity no longer available – Appellant has right to

avoid alienation in terms of Section 8 and till alienation set aside, it is valid – Appellant has to set aside sale if

wants to avoid transfers and recover properties from purchasers – But Appellant has not asked for prayer for

setting aside sale, instead, asked for preliminary decree declaring his share in suit properties – Appellant ought to

have prayed for cancellation of sale deeds expressly or impliedly and pay required Court fees – As prayer for

setting aside sale not asked for, sale cannot be cancelled – Having failed to seek prayer for cancellation of sale

deeds by paying Court fees, relief sought for by Appellant cannot be granted – Appeal dismissed.

Equivalent Citation: (2014)7MLJ37

IN THE HIGH COURT OF MADRAS

S.A. No. 1082 of 2006

Decided On: 19.08.2014

 R. Nagarajan
Vs.
Sundaravelu

Hon'ble Judges/Coram:Pushpa Sathyanarayana, J.

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