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2006 DIGILAW 4512 (PNJ)

Parvesh Kumari v. Harjinder Singh

2006-12-13

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. (Oral) - Present revision petition has been filed against an order passed by the learned Additional Civil Judge (Senior Division), Amritsar, vide which the objection petition filed by the Judgment Debtor against the sale has been entertained and issues have been ordered to be framed. 2. The Punjab National Bank, Amritsar had filed a suit for recovery against M/s Sea Lord Industries and others and the said suit was decreed on 11.9.1980. In execution of the said decree the property belonging to Bhur Singh and Harjinder Singh was attached and auctioned on 7.2.1998. The said sale was confirmed as no objections were filed against the auction held on 21.3.1998, and accordingly, the sale certificate was also issued in favour of the petitioner-auction purchaser on 3.4.1998 vide Annexure P.1 attached with the petition and consequently the execution application was disposed of having been satisfied on 4.4.1998 vide order Annexure P.3. 3. In pursuance to the confirmation of sale the petitioner herein moved an application under Order 21 Rule 95 of the Code of Civil Procedure (for short the Code), for delivery of possession on 23.4.1998. On notice having been issued the Judgment Debtor filed objections against the sale on 27.5.1998. The petitioner filed reply to the said objection and took preliminary objection to the effect that the present objections were not competent under Order 21 Rule 90 of the Code as there was no execution application pending in which the objections could be entertained. The petitioner has further taken up a plea that the provisions of Section 5 of the Limitation Act were not applicable and therefore, the objections could not be entertained after the expiry of limitation. However, keeping in view the fact that an application was moved by the objector along with the objection petition for condonation of delay, the learned Executing Court has been pleased to frame the following issues : "1. Whether there has taken place some material irregularity or fraud in publishing or conducting the sale ? OPJD 2. Whether there are sufficient grounds to set aside the sale ? OPJD 3. Whether the application is within limitation and is not time barred ? OPJD 4. Relief. 4. Whether there has taken place some material irregularity or fraud in publishing or conducting the sale ? OPJD 2. Whether there are sufficient grounds to set aside the sale ? OPJD 3. Whether the application is within limitation and is not time barred ? OPJD 4. Relief. 4. Learned Executing Court by interpreting the provisions of Order 21 Rule 90 of the Code came to the conclusion that as no sale can be set aside without coming to the conclusion that on account of irregularity or fraud the appellant has suffered substantial injury, therefore, it is incumbent upon the Court to first allow the parties to lead evidence and it is thereafter that application under Order 21 Rule 90 of the Code can be disposed off. 5. On the question of limitation the learned Executing Court came to the conclusion that the question of limitation can be decided only after giving opportunity to the parties to lead their evidence. 6. The learned counsel for the petitioner has challenged the impugned order primarily on the ground that the objections against the sale could be filed within 60 days from the date of the sale and once the same was not done there was no jurisdiction with the Court to entertain the said objections thereafter as provisions of Section 5 of the Limitation Act are not applicable to the proceedings under Order 21 of the Code. In support of its contention, learned counsel for the petitioner made reference to Section 5 of the Limitation Act which reads as under :- "5. Extension of prescribed period in certain cases : Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." Learned counsel for the petitioner further placed reliance on the judgment of Honble Supreme Court in Damodaran Pillai & Ors. v. South Indian Bank Ltd., AIR 2005 (SC) 3460. Para Order 15 of the said judgment reads as under :- "15. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code. v. South Indian Bank Ltd., AIR 2005 (SC) 3460. Para Order 15 of the said judgment reads as under :- "15. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order 21 of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order 21 of the Code. In that view of the matter, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked." 7. In view of the provisions of Section 5 of the Limitation Act as well as the authoritative pronouncement given by the Honble Supreme Court the objections filed by the respondent herein could not be entertained being beyond the period of limitation prescribed and therefore, were required to be rejected summarily especially when it was admitted by the objectors themselves that the objections were barred by limitation as application for condonation of delay was moved along with the said objections. Accordingly, the revision is allowed. The impugned order is set aside. The petition filed by the objector-respondent under Order 21 Rule 90 is hereby dismissed. Revision allowed.