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2024 DIGILAW 13 (AP)

Ganta Subbayamma v. Vetsa Satyanarayana

2024-01-02

VENKATA JYOTHIRMAI PRATAPA

body2024
JUDGMENT : VENKATA JYOTHIRMAI PRATAPA, J. 1. This Civil Miscellaneous Appeal is filed under Order XLIII Rule 1 r/w Section 104 of the Code of Civil Procedure, 1908(for short' the C.P.C), challenging the validity and correctness of the impugned order dated 24.04.2014 in E.A. No. 150 of 2013 in E.P. No. 15 of 2003 in OS No. 29 of 1997 on the file of the Court of Principal Senior Civil Judge, Kovvur, wherein, the petition filed by the Judgment Debtors(For short 'J.Dr') under Order XXI Rule-89 r/w Section 151 of CPC was dismissed. 2. The Appellant Nos. 1 to 3 were the J.Dr. Nos. 1 to 3, the Respondent Nos. 1 to 8 were the Decree Holders (D. Hrs.)/Plaintiffs/Respondents and the Respondent No. 9 was the auction purchaser/Respondent before the Executing Court. For the sake of convenience, the parties herein will be referred to as J.Drs, D.Hrs., and auction purchaser. 3. The case of the Appellants/J.Drs., in a nutshell, is as follows: a. The Respondent No. 1-deceased Decree Holder filed a suit in O.S. No. 29 of 1997 on the file of the Court of Principal Senior Civil Judge, Kovvur against the Appellant No. 1/ deceased J. Dr. No. 1., for recovery of money based on the promissory note and obtained a decree on 05.08.2002. The deceased Respondent No. 1 filed E.P. No. 15/2003 for realisation of decretal amount by bringing the scheduled properties for sale restricting their claim against Item No. 1 of the E.P. Schedule Property. b. The Appellant No. 3, who is the daughter of the original J.Dr./Ganta Rama Mohan Rao, filed O.S. No. 97/2004 on the file of the Court of II Additional District Judge, Family Court, West Godavari District, Eluru, seeking partition of the scheduled properties and also for a declaration that the decree obtained by the deceased and the Respondent No. 1 herein are not binding on her. c. During the pendency of this CMA, the Appellants filed IA No. 1 of 2022 to receive the additional documents, which are certain certified copies. Other side did not raise any objection to the same. Accordingly, the petition is allowed. d. During the pendency of the present CMA, the Respondent No. 1, who is the original D.Hr., died and as such the Respondent Nos. 2 to 8 are brought on record as the legal representatives. Other side did not raise any objection to the same. Accordingly, the petition is allowed. d. During the pendency of the present CMA, the Respondent No. 1, who is the original D.Hr., died and as such the Respondent Nos. 2 to 8 are brought on record as the legal representatives. The Respondent No. 9 herein is the auction purchaser, who purchased the property in the sale held on 16.12.2004, while so, the Appellant No. 3/J.Dr. No. 3 filed I.A. No. 1831 of 2004 in O.S. No. 97 of 2004 on the file of the court of II Additional District Judge, West Godavari, Eluru and obtained an order of injunction in respect of the confirmation of sale regarding her 4/9th share. Therefore, O.S. No. 97 of 2004 was transferred to the Court of Additional District Court, Kovvur and renumbered as OS No. 10/2012 and stay order was continued. e. While so, the executing court conducted sale subject to the result of the claim of the J.Dr. No. 3 in OS No. 97/2004. Thereafter, the J.Dr. No. 2 herein filed a petition in the partition suit claiming her share out of the share of her deceased son. She also obtained an order of injunction for confirmation of sale in the execution petition. It is further stated that at the intervention of elders, the matter was settled between the D.Hr. and the J.Drs. and thereby, the D.Hrs. filed IA No. 614 of 2013 in OS No. 10 of 2012 to vacate the order passed in IA No. 1831 of 2004 for enabling them to proceed with the EP and the stay petition was allowed and thereby, injunction which was granted against the confirmation of sale in EP No. 18/2003 was vacated on 25.04.2013. f. The Appellant/J.Dr. herein filed EA No. 150 of 2013 on 30.04.2013 to set aside the sale along with full satisfaction memo and by depositing the Poundage amount plus 5% of the purchase money. The auction purchaser filed counter contesting the matter on the ground that the amount deposited by the J.Dr. along with the petition filed under Order-XXI Rule-89 CPC is beyond the period of limitation i.e., 30 days, apart from taking other objections. The Respondent Nos. 2 to 8, who are the legal representatives of the original D.Hr., endorsed no objection to set aside the sale. 4. along with the petition filed under Order-XXI Rule-89 CPC is beyond the period of limitation i.e., 30 days, apart from taking other objections. The Respondent Nos. 2 to 8, who are the legal representatives of the original D.Hr., endorsed no objection to set aside the sale. 4. Version of the Respondent No. 9/Auction Purchaser: a. The Respondent No. 9/auction purchaser would contend that the petition filed under Order-21 Rule 89 CPC by the J.Dr. is beyond the period of limitation. The D.Hr. and the J.Drs. in collusion filed a Joint Memo and got vacated the stay order in OS No. 10/2012 which is not binding on him. It is further stated that by suppressing the real facts, the J.Drs. approached the Court with unclean hands. He invested huge amounts for purchase of the schedule properties. His rights have to be protected. The J.Dr. No. 3, who is the daughter of the original J.Dr. deliberately filed O.S. No. 97/2004 as an after-thought. There are no irregularities in conducting auction. After lapse of several years, filed a petition under Order-21 Rule-89 CPC, which is not maintainable either in law or on facts. 5. Learned Executing Court's Judge after hearing the counsel representing both the parties and on appreciation of the material on record, dismissed the petition with costs on the ground that it is not within the period of limitation. 6. Feeling aggrieved and dissatisfied with the impugned order, the J.Dr. preferred the present appeal for the following grounds: a. The learned Judge misinterpreted the provision under Order-XXI Rule-89 CPC, as the sale of Item No. 1 of the E.P. Schedule Property was conducted on 16.12.2004, and by the said date, the learned II Additional District, Eluru, granted ex-parte temporary injunction in favour of the J.Dr. No. 3 on 25.11.2004 in I.A. No. 1831 of 2004 in O.S. No. 97 of 2004, restraining the original D.Hr. from executing the decree. The copy of the said injunction order was served on the original D.Hr. on 02.12.2004 itself. b. The Respondent No. 9/auction purchaser was informed by the Executing Court that the sale is subject to the claim of the J.Dr No. 3 in the partition suit in OS No. 97 of 2004. While calculating the period of limitation, immediately, after vacating the injunction in O.S. No. 97 of 2004, the J.Drs. deposited the sale amount on 30.04.2013. b. The Respondent No. 9/auction purchaser was informed by the Executing Court that the sale is subject to the claim of the J.Dr No. 3 in the partition suit in OS No. 97 of 2004. While calculating the period of limitation, immediately, after vacating the injunction in O.S. No. 97 of 2004, the J.Drs. deposited the sale amount on 30.04.2013. c. The auction purchaser/Respondent No. 9 having knowledge of the Order in O.S. No. 97 of 2004 cannot turn around and contend that he is not aware of the said injunction order. d. The J.Dr No. 2 also filed counter claim in O.S. No. 97 of 2004 and sought for temporary injunction against the confirmation of sale in the present execution petition. The Court was pleased to grant temporary injunction staying all further proceedings pursuant to the sale held in the present EP. e. The J.Drs., filed the subject Petition within the period of 60 days from the date of vacation of injunction Order in O.S. No. 97 of 2004, in compliance of the Order-XXI Rule 92(2) read with Order-XXI Rule-89 CPC. f. Though the period for depositing the sale amount is fixed as 60 days pursuant to the Code of Civil Procedure (Amendment) Act, 2002, the learned executing court's Judge calculated the period of limitation as 30 days, which is not correct. After amendment to the CPC in the year 2002, the appellants rightly filed the petition under Order-XXI Rule-92 CPC within the period of limitation of 60 days. g. The learned executing Judge failed to refer the Judgment relied on the by the J. Drs but referred the authority relied on by the auction purchaser though it is not applicable to the facts of the present case. 7. Heard Sri G. Krishna Murthy, learned counsel for the appellants/J.Drs., and Sri Vijaya Aditya, learned counsel representing Sri C.Prakash Reddy, learned counsel for respondent No. 9/auction purchaser. Perused the material on record. Arguments Advanced on behalf of the appellants/J.Drs. 8. Learned counsel for the Appellants would submit that the J.Dr. No. 3, who is the daughter of the original J.Dr., filed a suit for partition in O.S. No. 97 of 2004 on the file of the Court of II Additional District Judge, Eluru and obtained stay of confirmation of sale to the extent of three shares in the schedule property on 25.11.2004. No. 3, who is the daughter of the original J.Dr., filed a suit for partition in O.S. No. 97 of 2004 on the file of the Court of II Additional District Judge, Eluru and obtained stay of confirmation of sale to the extent of three shares in the schedule property on 25.11.2004. The said order of stay against the confirmation of sale was vacated on 25.04.2013 and on the very next day, the J.Drs., filed EA No. 150 of 2013 under Order-XXI Rule-89 CPC to set aside the sale in the EP on 16.12.2004 along with an order to deposit the poundage amount plus 5% of the sale amount. 9. Learned counsel would submit that along with the petition, the J.Drs. have filed full satisfaction memo and that the learned Executing Judge dismissed the said petition on the ground that the amount is not deposited within 30 days. The period of injunction/stay obtained in OS No. 97/2004 against the confirmation of sale has to be excluded while calculating the period of limitation. Then, the petition is filed, which is within the period of limitation. Learned counsel further would submit that the respondent No. 9/auction purchaser has nothing to do with the property until confirmation of sale. The scheduled properties to an extent of Ac.6.25 cents are situated in West Godavari District and the decree debt is Rs. 7,50,000/-. Learned counsel would submit that since the matter is settled between the J.Drs and D.Hrs., the executing Court ought to have allowed the petition by issuing lodgement for making deposit of 5% of the purchase money along with poundage. Arguments advanced by Respondent No. 9/Auction Purchaser: 10. Refuting the submissions referred to supra, learned counsel would submit that pending the execution petition, the J.Dr. No. 1 died and his mother, wife and daughter were brought on record as his legal representatives. Learned counsel would submit that the injunction obtained in OS No. 97 of 2004 by the daughter of the original J.Dr. is against the confirmation of sale, which was held on 25.11.2004 and the sale was conducted subject to the outcome in O.S. No. 97 of 2004. The mother of the deceased/J.Dr. also filed an application in O.S. No. 97/2004 and obtained an order of injunction against confirmation of sale. 11. is against the confirmation of sale, which was held on 25.11.2004 and the sale was conducted subject to the outcome in O.S. No. 97 of 2004. The mother of the deceased/J.Dr. also filed an application in O.S. No. 97/2004 and obtained an order of injunction against confirmation of sale. 11. Learned counsel vehemently argued on the point that the interim order passed in OS No. 97/2004 relating to the stay for confirmation of sale does not come to the rescue of the J.Drs. and the period of limitation by no stretch of imagination has been extended since it is not stay of all further proceedings in the execution petition. Learned counsel further submits that because the matter is settled between the J.Drs and D.Hrs., they got vacated the stay order behind the back of the respondent No. 9. 12. Learned counsel fairly conceded that the period of limitation, to file an application as well as to deposit the money, is 60 days from the date of sale, which was mistakenly understood by the learned executing Court's Judge. Learned counsel further submits that the J.Drs. have to deposit the entire amount. In the present case, full satisfaction Memo has been filed showing that the payment made outside the Court cannot be considered as deposit under Order-XXI Rule-89 CPC. The stay granted for confirmation of execution petition is subject to the result of OS No. 97 of 2004. Ultimately, the said suit was dismissed. Learned counsel further would submit that Respondent No. 9/auction purchaser deposited the entire amount of sale and after nine years, the J.Drs. have filed the present petition, which is not sustainable in law. Learned counsel finally prays for dismissal of the appeal with costs. Points for Determination 13. Having heard the submissions of learned counsel representing both the parties, the points that would emerge for determination are as follows: (1) What is the period of limitation to file a petition under Order-XXI Rule 89 CPC so also to deposit the amount? (2) Whether the period of stay obtained in O.S. No. 97 of 2004 against the confirmation of sale in E.P. No. 151 of 2003 to the extent of 4/9th share saves limitation for filing a petition under Order-XXI Rule-89 CPC? (3) Whether the Full Satisfaction Memo can be filed in lieu of depositing the due amount as per the decree ? (3) Whether the Full Satisfaction Memo can be filed in lieu of depositing the due amount as per the decree ? If so, is it a proper compliance of the Order-XXI Rule 89 CPC? (4) Whether there are any grounds warranting interference of this Court in the impugned order? POINT Nos. 1 and 2: Arguments advanced at the Bar: 14. Learned counsel for the Appellants would submit that the period of limitation to file a petition under Order-XXI Rule-89 CPC is 60 days from the date of sale. In the present case, because there is a stay for confirmation of sale, the J.Drs filed the petition soon after the stay is vacated. It is contended that the period of stay would save the limitation for filing an application under Order-XXI Rule-89 of CPC, whereas learned Executing Court's Judge erroneously opined that the period of limitation is 30 days. Learned counsel further submits that the period of limitation from the date of sale, till the date of stay, and then from the date of vacating the stay till the date of filing of the application, is sixty days. Learned counsel for the appellants would argue that Section 151 CPC comes to the rescue of the J.Drs. to save the period of limitation. 15. Per contra, learned counsel for Respondent No. 9/auction purchase would submit that though the period of limitation for filing an application under Order-XXI Rule-89 CPC is sixty days, the period of stay obtained against the confirmation of sale cannot be excluded for calculating such period. Learned counsel vehemently would argue that the order is not staying all further proceedings in EP, such being the case, nothing precluded the J.Drs. to file an application and deposit the money. Learned counsel further would submit that Section 15 of the Limitation Act has no application to the facts of the present case. Learned Executing Court's Judge under a mistaken impression, held that the period of limitation is thirty days, and wrongly calculated the period by excluding the period of stay, which is not tenable. Analysis by the Court: 16. For a ready reference, Order-XXI Rule-89, Rule-92(2) of CPC and Section 15 of the Limitation. Act, 1963 are extracted infra: "Order-XXI Rule-89 CPC: 89. Analysis by the Court: 16. For a ready reference, Order-XXI Rule-89, Rule-92(2) of CPC and Section 15 of the Limitation. Act, 1963 are extracted infra: "Order-XXI Rule-89 CPC: 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. Order-XXI Rule 92(2) CPC: 92. Sale when to become absolute or be set aside (1) ..................... (2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within [sixty days] from the date of sale, [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby. [Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002] Section 15 of the Limitation Act, 1963 15. Exclusion of time in certain other cases.- (1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation. In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted. (3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded. (4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded. (4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded. (5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded." 17. A cursory look at the impugned order would show that relying upon a three-Judge Bench Judgment of the Hon'ble Apex Court in P.K. Unni v. Nirmala Industries & Ors. 1990 AIR 933, learned Judge opined that the limitation for filing the petition under Rule 89 of Order XXI is 30 days. In P.K. Unni's case (supra) it was held that time for making a deposit in terms of Rule 89 of Order XXI is 30 days, and Article 127 of the Limitation Act, 1963, prescribing the period for making an application under Rule-89, has no relevance to the prescribed time for making the deposit. Neither provision has any affect on the other as to time. 18. Learned Executing Court's Judge also relied upon the Judgment of the co-ordinate bench of the composite High Court in Biruduvolu Haranadha Reddy V. State Bank of India (ADB), Kovur and another 2001(5) ALT 455 , wherein, it was observed that, deposit has to be made, as required by Rule-89 read with Rule 92(2) CPC, within thirty days from the date of sale which is a condition precedent for maintaining an application to set aside the sale. In that view, learned Executing Court's Judge held that even though there was time of 48 days from the date of sale i.e., 16.12.2004 and date of stay order dated 03.03.2005, J.Dr. has to deposit the amount within 30 days from the date of sale but not within 60 days. Hence, the application is time barred. 19. The object of Rule-89 of Order-XXI CPC is to give another opportunity to the J.Dr for setting the sale aside on deposit of the amount specified before the sale is confirmed. In a way, it is to compensate the auction purchaser by depositing 5% of purchase money. Hence, the application is time barred. 19. The object of Rule-89 of Order-XXI CPC is to give another opportunity to the J.Dr for setting the sale aside on deposit of the amount specified before the sale is confirmed. In a way, it is to compensate the auction purchaser by depositing 5% of purchase money. The Executing Court has no jurisdiction to entertain the application for setting aside the sale after a prescribed period by invoking Section 148 of the Code or by Section 5 of the Limitation Act, 1963. There is no dispute about the fact that earlier, the period for making an application for setting aside the sale was 30 days under Article 127 of the Limitation Act, 1963, but there was an Amendment in 1974 to the effect that from 30 days to 60 days. However, the Hon'ble Apex Court in P.K. Unni's case (supra) held that the limitation period for making the deposit in an application for setting aside the sale under Rule-89 of Order-XXI CPC is thirty days from the date of sale as prescribed under Rule-92(2) of Order-21 of the CPC. 20. The Hon'ble Apex Court in Dadi Jagannadham v. Jammulu Ramulu 2001 (7) SCC 71 dealt with the very same point. The question raised in the said appeal was whether the period of limitation for making the deposit in an application to set aside the sale of immovable property under Order-XXI of Rule-89 CPC is thirty days from the date of sale being the period prescribed under Order-XXI Rule-92(2) CPC or 60 days from the date of sale as prescribed under Article 127 of the Limitation Act. This decision is against the Order passed by a coordinate Bench of the composite High Court of Andhra Pradesh in the civil revision petition filed by the auction purchaser, wherein, it was held that the courts have to harmonise the true provision and interpret the same having regard to the intention of the legislation. Now it is relevant to extract paragraphs 8 and 18 of the decision and read as under: "8. On 20th February, 1990 this Court in the case of P.K. Unni v. Nirmala Industries and Ors. Now it is relevant to extract paragraphs 8 and 18 of the decision and read as under: "8. On 20th February, 1990 this Court in the case of P.K. Unni v. Nirmala Industries and Ors. reported in (1990) 2 SCC 378 held that the limitation period for making deposit in an application for setting aside sale under Order XXI Rule 89 is 30 days from the date of sale as prescribed under Order XXI Rule 92(2). It was noted that under Article 127, Limitation Act, 1963 the period for making an application for setting aside the sale was 30 days. It was noted that, in 1974, the Limitation Act was amended and the period of Limitation to file an application to set aside sale was extended from 30 days to 60 days. This Court noticed that the Statement of Objects and Reasons, in extending the period to 60 days, was as follows: "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 30 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 30 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 60 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. It was however held that Order XXI Rule 92(2) C.P.C. and Article 127, Limitation Act operated in different fields and that there was no repugnancy between the two. 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. It was however held that Order XXI Rule 92(2) C.P.C. and Article 127, Limitation Act operated in different fields and that there was no repugnancy between the two. It was held that even though the period under Article 127, Limitation Act was enlarged that period had no bearing on the time allowed for making a deposit. This Court held as follows: "15. The court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said: See Nalinakhya Bysack v. Shyam Sunder Haldar [ 1953 SCR 533 , 545 : AIR 1953 SC 148 ]. Assuming there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. No case can be found to authorise any court to alter a word so as to produce a casus omissus: Per Lord Halsbury, Mersey Docks and Harbour Board v. Henderson Brothers. [(1888) 13 AC 595, 602 : 4 TLR 703]. "We cannot aid the legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there": Crawford v. Spooner [(1846) 6 Moore PC 1, 8, 9 : 4 MIA 179]." 16. Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the court can, of course, adopt a construction which will carry out the obvious intention of the legislature. In doing so "a judge must not alter the material of which the Act is woven, but he can and should iron out the creases.: Per Denning, L.J., as he then was, Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155, 164]. See the observation of Sarkar, J. in M. Pentiah v. Muddala Veeramallappa [ (1961) 2 SCR 295 , 314: AIR 1961 SC 1107 ]. 17. In the construction of the relevant provisions, we see no contradiction or ambiguity or defect or omission. See the observation of Sarkar, J. in M. Pentiah v. Muddala Veeramallappa [ (1961) 2 SCR 295 , 314: AIR 1961 SC 1107 ]. 17. 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 637] 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 filing an application to set aside a sale in execution of a decree. Furthermore, 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. 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 : 1981 Ker LT 861], 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 had set out to achieve. No more no less. 18. Having given our careful consideration to the question, we are of the opinion that there is no anomaly and that there are no different periods of limitation for making deposits and/or filing an application for setting aside the sale. It has, in our view, accomplished what it had set out to achieve. No more no less. 18. Having given our careful consideration to the question, we are of the opinion that there is no anomaly and that there are no different periods of limitation for making deposits and/or filing an application for setting aside the sale. It is by virtue of Order XXI Rule 89 C.P.C. that an application for setting aside a sale and a deposit can be made. Order XXI Rule 89 C.P.C. does not prescribe any period within which the application is to be made or deposit is to be made. All that Order XXI Rule 92(2) provides is that if the deposit is made within 30 days from the date of sale and an application is filed then the Court would have no discretion but to set aside the sale. That does not mean that if the deposit is made after 30 days the Court could not entertain the application. If the deposit is made beyond the period of 30 days, but within the period of 60 days, then it will be within the discretion of the Court whether or not to grant the application. Thus, an application can be made within the period prescribed under Article 127, Limitation Act. As an application can be made within 60 days and, as stated above, no period for making a deposit is prescribed under Order XXI Rule 92(2) the deposit can also be made within 60 days. In our view, therefore, the view expressed in P.K. Unni's case that Order XXI Rule 92(2) C.P.C. prescribes a period of limitation for making a deposit is not correct." 21. When the special leave petition came before the three-Judge Bench of the Hon'ble Apex Court, they did not agree with the view expressed in P.K. Unni's Case (supra) and referred the matter to five-Judge Bench for considering the correctness of the view taken in P.K. Unni's case. As such, in Dadi Jagannadham's case (supra) a constitutional Bench of three Judge clarified that the period of limitation for filing an application under Order-21 Rule-89 CPC as well as depositing the money is sixty days as per Article 127 of the Limitation Act, 1963. 22. In Venkataramanappa and others v. T.M. Chalapathi, 2008(1) ALT 482 at paragraphs-11 and 12 it was held as under: "11. 22. In Venkataramanappa and others v. T.M. Chalapathi, 2008(1) ALT 482 at paragraphs-11 and 12 it was held as under: "11. In the present case, the sale was held on 21-06-2004 and it was confirmed on 06-07-2004,'Sub-rule (1) of Rule 92 discloses that the sale become absolute and can be confirmed on fulfilling two conditions, namely (1) No application is filed under Rules 89, 90 or 91 or (2) The Application filed under the above provisions has been disallowed. For making an Application to set aside the sale as contemplated under Rules 89, 90 or 91, limitation of 60 days was prescribed under Article 127 of the Limitation Act from the date of the sale. The provision indicates that the Act conferred a right upon any person to file an Application even on the last date of limitation. The Execution Court is not supposed to take further steps for confirmation of the sale till the expiry of the period of 60 days or till the Application filed under Rules 89, 90 or 91 is disposed of. Rule 92 is also supplementary to Article 127 of the Limitation Act. 12. From the reading of the above provisions, it is clear that the Execution Court is required to wait either till the last date of limitation for filing Applications to set aside the sale or if applications are filed, till the disposal of those Applications. But the lower Court, out of its anxiety, failed to notice Rule 92 regarding the limitation for confirmation of the sale and passed the confirmation order on 06-07-2004, which is only 16 days from the date of the sale." 23. In Patnam Subbalakshmamma v. Sunkugari Sreenivasa Reddy and another, 2011 (3) ALT 591 at paragraph 19, it was held as under: "19. The limitation for such deposit is stipulated under sub-rule(2) of Rule 92 C.P.C., as 60 days from the date of sale. If an application under Rule 89 is made within the stipulated time, the Judgment-debtor does not have to prove any irregularity in the sale, as such. Even if it is otherwise legal, the sale deserves to be set aside, if the amount as required under that Rule is deposited." 24. If an application under Rule 89 is made within the stipulated time, the Judgment-debtor does not have to prove any irregularity in the sale, as such. Even if it is otherwise legal, the sale deserves to be set aside, if the amount as required under that Rule is deposited." 24. In Kamireddy Sumathi V.C. Mallikarjuna Reddy and others CRP No. 3466 of 2011 dated 28.12.2015, (CRP No. 3466 of 2011 dated 28.12.2015) the same question fell for consideration and a coordinate Bench of the composite High Court held that the period of limitation is sixty days for filing the application as well as the deposit of money by placing reliance on the Judgment of the constitutional Bench of the Hon'ble apex Court in Dadi Jagannadham's case (supra). 25. In Ram Karan Gupta v. J.S. Exim Ltd., and others AIR 2013 SC 24 , the Hon'ble Apex Court at paragraph-20 held as under: "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." 26. In the light of the discussion referred to supra, the view expressed by the learned Executing Court's Judge in the impugned order is not sustainable in law. The period of limitation for filing the application as well as depositing the amount is sixty days. On keen scrutiny of the language employed under Section 15 of the Limitation Act, the argument advanced on behalf of the Appellants is that the period of stay is to be excluded in calculating sixty days. Had it been done by calculating sixty days, excluding the period of stay, the petition is well within the period of limitation, falls to ground. Had it been done by calculating sixty days, excluding the period of stay, the petition is well within the period of limitation, falls to ground. The reason being, as per Section 9 of the Limitation Act, once the period starts it would not stop, unless the statute gives such exemption or any court passes any order to that extent. In the present case, the order of injunction against confirmation of sale has been obtained. For better understanding, the order obtained by the daughter of the original J.Dr. in OS No. 97 of 2004 in IA No. 1834 of 2004 dated 25.11.2004 is extracted hereunder: "that the respondents 3 to 6 named above be and are hereby restrained by way of interim injunction in respect of confirmation of sale regarding the 4/9th share claimed by the petitioner in the plaint schedule properties till 3.12.2004." 27. The order is vivid on the aspect that IA No. 1 of 2022 is against the confirmation of sale that too, to the extent of 4/9th share which was claimed by the petitioner. The suit was dismissed for default. 28. For clarity, the Judgment dated 13.03.2014 in O.S. No. 10 of 2012 on the file of the Court Additional District Judge, West Godavari, Kovvur (old number OS No. 97 of 2004) is extracted below: "Plaintiff called absent. Plaintiff who was taking adjournment that she compromised with all defendants except D7, stopped attending the court. No representation for the plaintiff. Suit is dismissed for default." 29. The Judgment would show that there was a compromise between the plaintiffs as well as the defendants, who are the D.Hrs. The compromise is not with the auction purchaser, who was shown as Defendant No. 7. The net result is that the petitioner could not get any part of the property in the EP schedule property in the suit filed by her for partition. The second attempt has been made by the mother of the deceased to obtain an order of injunction in IA No. 2031/2004 in OS No. 97/2004 and reads as under: "Counters of R-1, R-3 to R-7 not filed. R-2 and R-8 called absent. Confirmation of sale in EP 21/2003 and EP 15/2003 on the file of Senior Civil Judge, Kovvur is stayed till further orders. For steps to R-2 & R8 and counters of R-1, R-3 to R-7, posted to 21.02.2005." 30. R-2 and R-8 called absent. Confirmation of sale in EP 21/2003 and EP 15/2003 on the file of Senior Civil Judge, Kovvur is stayed till further orders. For steps to R-2 & R8 and counters of R-1, R-3 to R-7, posted to 21.02.2005." 30. Such being the case, the executing court conducted auction of E.P. Schedule property subject to the Orders referred to above. 31. The proceedings in EP would show that because there is a stay regarding confirmation of sale, auction held subject to the claim of J.Dr. No. 3 in the partition suit and the order of Court thereon. The sale was knocked down for Rs. 7,25,000/-. There is no dispute about the fact that the auction purchaser deposited the entire amount in the Court. The stay granted is not stay in respect of all further proceedings in EP. But the stay is there against the confirmation of sale. The fact remains that the J.Drs filed a petition under order -XXI Rule-89 CPC after nine years. The argument that Section 15 of the Limitation Act would come to their rescue for exclusion of period of stay holds no water. The ultimate result of the suit is dismissal. The stay granted is only for confirmation of sale to the extent of 4/9th share of J.Dr. No. 3. 32. At this juncture, learned counsel for the Appellants placed reliance on the Judgment of the Hon'ble Apex Court in Banda Chinna Subbarayudu and others V. Thallam Vishwanatha Rao and another 2010(1) ALD 28 (SC). This is an appeal preferred against the judgment passed by a coordinate Bench of the composite High Court of Andhra Pradesh in CRP, which was dismissed. The Appellants are J.Drs. The DHr brought the property to sale. Meanwhile, a third party obtained stay of all further proceedings in an appeal preferred against the judgment. Thereafter, the J.Drs. filed an application under Order-XXI Rule 89 CPC to set aside the sale. The said application was dismissed on the ground that it is filed beyond the period of limitation prescribed under Article 127 of the Limitation Act, 1963 and the amount what is required to be deposited was not deposited. In the appeal, the stay order was confirmed. The J.Drs. carried the matter in revision before the High Court which was dismissed. The said application was dismissed on the ground that it is filed beyond the period of limitation prescribed under Article 127 of the Limitation Act, 1963 and the amount what is required to be deposited was not deposited. In the appeal, the stay order was confirmed. The J.Drs. carried the matter in revision before the High Court which was dismissed. Aggrieved by the same, they approached the Hon'ble Apex Court, wherein, the question raised was whether the J.Drs would be entitled to the benefit of the limitation period during which, they were prevented by the execution proceedings in taking steps to file an application for setting aside the sale. At paragraphs 9 and 10 it was held as under: "9. Having heard learned Counsel for the respective parties and considering the facts, as disclosed in the records, we are unable to uphold the decision of the High Court in this regard. Whether the stay of the Execution Proceedings was obtained by the judgment-debtor or by any other person is hardly relevant except to decide whether the judgment-debtor could have taken any steps in the proceedings which were stayed. That a stay of the Execution Proceedings was granted on 25th November, 2003, is admitted. That such stay was vacated on 2nd December, 2004, is also admitted. If the period between 25th November, 2003, and 2nd December, 2004, when the stay was vacated is excluded, then the steps taken by the judgment-debtor thereafter under Order 21 Rule 89 CPC would be in time. 10. In our view, since the appellants were prevented by the stay order from taking any further steps in the Execution Proceedings, they would be entitled to the benefit of the said period and the same has to be excluded while considering the question of limitation as prescribed under Article 127 of the Limitation Act." 33. The Judgment referred to supra is distinguishable on the facts of the present case. The reason being, in the above case, the J.Dr was prevented to take any steps in the execution proceedings because the stay was obtained by the third party by staying all further proceedings in the execution proceedings. The Judgment referred to supra is distinguishable on the facts of the present case. The reason being, in the above case, the J.Dr was prevented to take any steps in the execution proceedings because the stay was obtained by the third party by staying all further proceedings in the execution proceedings. The test which is to be examined for exclusion of the period of limitation is categorically mentioned in the Judgment, that whether the J.Dr could have taken any steps in the proceedings which was stayed irrespective of the person, who obtained the stay order, J.Dr or any other person. 34. Coming to the facts of the present case, the J.Dr has obtained stay only for confirmation of sale that too, to the extent of 4/9th share of her claim. In the absence of complete stay and also against the whole property, there cannot be any reason to consider that the J.Dr is prevented to take any steps in the execution proceedings. As rightly argued, after nine years, the application has been filed. In the light of the aforesaid discussion, this Court is of the view that the period of stay granted against the confirmation of sale, cannot be excluded for computing the limitation for filing the application under Order-XXI Rule-89 CPC. Therefore, the impugned order is correct, but the reasons to come to such conclusion are not sustainable in the eye of law. The auction was held in 2004 i.e., twenty years back. The learned Judge has calculated the limitation by excluding the period of stay which is not on correct lines. 35. If J.Dr. files an application under Order XXI Rule 89 CPC within the period of limitation and by depositing the required amount, the Court has no discretion except to set aside the sale. Only to avoid the sale, the daughter of the original J.Dr filed a suit for partition, and took nine years time to settle the issue with the D.Hrs and then came back and filed the present application, though the stay is there only against the confirmation of sale to the extent of her claim of 4/9th share. Ultimately, the suit was dismissed. Learned counsel for the appellant would submit that because there was no confirmation of sale, auction purchaser has no role to play to file his objections on the petition filed under Order XXI Rule 89 CPC. Ultimately, the suit was dismissed. Learned counsel for the appellant would submit that because there was no confirmation of sale, auction purchaser has no role to play to file his objections on the petition filed under Order XXI Rule 89 CPC. As discussed supra, in case J.Dr files such application within the period of limitation as per Rule-89 and Rule 92(2) CPC coupled with Article 127 of the Limitation Act, the auction purchaser has no role to raise any objection because his money is being protected with compensation i.e., 5% of purchase money. In the present case, about two decades back, the auction purchaser parted his money. The petition has not filed within the period of limitation and it is deliberately filed after nine years. When the maintainability of the petition itself is in question, the auction purchaser may raise their objections to set aside the sale. 36. Needless to say the auction purchaser has no role till the confirmation of sale, but in the peculiarity of the present case, raising objections by the auction purchaser is sustainable under law. 37. This Court is of the considered view that, since the J.Drs., failed to deposit the amount within the period of limitation, even on the ground of equity, vested right of the auction purchaser over the property for confirmation of sale cannot deprive his legitimate right over the property which was purchased in the public auction about twenty years back. POINT No. 3: 38. Learned counsel for the Respondent No. 9/Auction purchaser would submit the Joint Memo filed by the J.Drs., along with the application that they have compromised the matter is not sufficient. Depositing the money, plus 5% of purchase money and poundage are sine qua non for filing an application under Order-XXI Rule 89 CPC and hence, the Joint Memo or Full Satisfaction Memo obtained from the D.Hrs. would not serve the purpose. To answer this issue, learned counsel placed reliance on the decision in Challamane Huchha Gowda v. M.R. Tirumala and another, (2004) 1 Supreme Court Cases 453. At paragraph-10 it was held as under: "10. In the case on hand, it is not disputed that within the stipulated period of one month from the date of final bid in Court, the Petitioner-Judgment Debtor paid the, decree amount to the Decree Holder and also filed a memo for setting aside the sale in the form of objections. At paragraph-10 it was held as under: "10. In the case on hand, it is not disputed that within the stipulated period of one month from the date of final bid in Court, the Petitioner-Judgment Debtor paid the, decree amount to the Decree Holder and also filed a memo for setting aside the sale in the form of objections. Executing Court noted this aspect. By this payment the requirement under Rule 89(1)(b) of Order 21 was fulfilled. It is also noted that the Respondent No. 1 - Auction Purchaser refused to accept the solatium and he subsequently filed Application for confirmation of sale. Meanwhile the executing Court ordered for the deposit of solatium with the Court. This deposit complied with the second requirement under Rule 89(1)(a) of Order 21. Admittedly, on 25.09.1992 the Petitioner - Judgment Debtor filed his objections to the sale and also paid the entire decree amount together with the cost to the Respondent No. 2 - Decree Holder. The factum of the payment of entire decree amount to the Decree Holder with cost was not looked into by the First Appellate Court or by the High Court nor did it attach any value to the memo of objections for setting aside sale. It is also a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application, since, there is no bar in treating the objection (filed in the present case) as an application to setting aside the sale. Hence the setting aside of sale by the execution Court is perfectly in tune with the Code. In this view of the matter it is not necessary to look into other aspects agitated by the contesting parties not to look into the authorities cited before us. Accordingly the order of the High Court affirming that of the First Appellate Court is set aside and order of the Executing Court is restored." 39. In the light of the observation referred to supra, the argument of the learned counsel for Respondent No. 9 holds no force, since full satisfaction memo which was issued by the DHr and filed before the Court instead of depositing the cash can be treated as proper compliance under Order XXI Rule 89 CPC. Point No. 4: 40. The impugned order has been passed on the point of limitation. Point No. 4: 40. The impugned order has been passed on the point of limitation. But nothing has been dealt with touching the merits of the petition. The auction was held about two decades back. The view of the learned executing Court Judge in coming to such conclusion is not correct. But the result is correct. In that view, since it is an old matter, instead, remanding the matter to the executing Court, this court has dealt with every issue finally in this civil miscellaneous appeal. In the light of finding on Point No. 2, appeal is liable to be dismissed. 41. In the result, the civil miscellaneous appeal is dismissed. No order as to costs. As a sequel, pending applications, if any, shall stand closed.