Aarifaben Yunusubhai Patel and others vs Mukul
Thakorebhai Ami & others.
.. Mohan Shankar, Advocate, Erode.
Citation:
2020 (2) MWN (Civil) 116
https://indiankanoon.org/doc/48527999/
Question of law : The legal issue involved is
whether Section 5 is applicable to condone the delay in filing the petition
under Order 21 Rule 90 of CPC and whether the time taken to pursue remedy
before other courts can be excluded under Section 14 of Limitation Act?
Facts of the case: In this case, the
defendants sustained a decree for recovery of Sum of Rs.1,89,94,105.50/- and
they preferred appeal before the appellate court. But no stay was granted. In
the meanwhile EP was filed by the decree holder on 02.11.2007 and receiver was
also appointed to sell the property of the defendants. Pursuant to that. The
properties were brought for auction on 26.11.2007 and the properties were
successfully auctioned and the auction purchaser deposited 25 % of the sale
amount.
On.10.12.2007, the decree holder applied for
permission to confirm the sale and thereafter the receiver filed petition for
clarification and the counsel for the judgement debtors wanted time to file
objections.
Instead
of filing objections, the judgement debtors preferred writ petition before High
court challenging the court auction sale. In the meanwhile the judgement debtor
kept appearing before the executing court and wanted to stay all further
proceedings. However the judgement debtor did not file any objections under
Order 21 Rule 90 CPC, Sale certificate was issued in favour of the auction
purchaser on 29.02.2008.
Meanwhile status quo was granted by the High
court subject to the deposit of 50 lakhs. Aggrieved by the order of the single
judge, the auction purchaser filed LPA before the division bench and obtained
stay. Against which the defendant preferred SLP before the apex court.
Subsequently it was withdrawn on 20.04.2008 at the instance of the decree
holder who had filed a petition in the meanwhile before the executing court
stating that it had not authorised its officer to get the property sold.
Thereafter the defendants/judgement debtors filed a petition under Order 21
Rule 90 CPC on the ground of irregularity under the pretext that no notice was
issued to the defendants/judgement debtors throughout the entire execution
proceedings.
Further the judgement debtors also informed
before the High court about filing petition under Order 21 Rule 90 CPC and the High court recorded the finding on
17. 07.2008 after recording the submission of the respective counsel about the
concession regarding the objection with respect to limitation. Thereafter on
07.10.2008, the auction purchaser filed a petition before the High court to
recall the concession not to raise the issue of limitation in the earlier order
dated 17.07.2008.
But the High court dismissed the said petition
against which the auction purchaser had preferred SLP before the apex court
which directed the executing to decide the allegation with regard to fraud in
conducting the sale and also about the applicability of Section 5 and 14 of
Limitation Act. Thereafter the executing court conducted the enquiry and
dimissed the petition under Order 21 Rule 90 CPC.
The
judgement debtor challenged the order of the executing court before High court
and it allowed the petition and it decided the merits of the petition and not
discussed the issue with regard to Limitation. Against which the appeal is
preferred before the apex court.
Order of The Apex court: Held that the High court did not decide the
issue of limitation though specifically directed by the Apex court in the
earlier order to do so. The apex court has held that setting aside sale
petition filed under Order 21 Rule 90 CPC under the ground of irregularity has
to be filed within 60 days from the date of knowledge of the sale and Section 5
Limitation Act is not applicable to the petition filed under 21 Rule 90
Petition. Since the judgement debtor aware of the sale on 18.12.2007 as he
sought time before executing court to file objection to the sale, he ought to
have filed the petition under Order 21 Rule 90 CPC within 60 days therefrom.
Further the exclusion of time sought by the judgement debtor under the pretext
of pendency of proceeding before High court and Supreme Court cannot be granted
since Section 14 of Limitation act is applicable when another remedy was
prosecuted with due diligence and good faith. But the writ petition before the
High court was not filed in good faith as on 18.12.2007 the judgement debtor
appeared before the executing court and sought time to file objection. Hence
the petition filed by the judgement debtor under Order 21 Rule 90 is time
barred and setaside the order of the High court and upheld the order of the
executing court.
....Mohan Shankar, Advocate, Erode.
Comments
Post a Comment