Civil Judge Dismissed The Said ... vs Mallikarjun1. He
2022 Latest Caselaw 2721 AP

         HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                   CIVIL REVISION PETITION No. 1088 of 2016

ORDER:

This civil revision petition is filed against the order dated 22.01.2016 passed

by the Principal Junior Civil Judge, Vizianagaram, in E.A.No.942 of 2015 in

E.P.No.268 of 2011 in O.S.No.731 of 2007 whereby the learned Principal Junior

Civil Judge dismissed the said application filed by the petitioner herein/JDR

seeking to set aside the sale and permit him to deposit the EP amount.

2. Facts of the case, in brief, are that the petitioner is the judgment debtor, the

1st respondent is the decree holder, and the 2nd respondent is the auction purchaser

of the E.P. schedule property. The petitioner filed an application under Order XXI

Rule 89 of CPC in E.A.No.942 of 2015 in E.P.No.268 of 2011 in O.S.No.731 of

2007 on the file of the Principal Junior Civil Judge, Vizianagaram, seeking to set

aside the sale of auction conducted on 22.06.2015 and permit him to deposit the EP

Amount, claiming that he secured the amount payable in the E.P., and he is ready

to deposit the same. The said application was dismissed by the Court below vide

order dated 22.01.2016 on the ground that the application is barred by limitation.

Aggrieved thereby, the petitioner preferred the present revision.

3. Heard Sri G.V.S. Mehar Kumar, learned counsel for the petitioner/JDR, and

Sri S.V.S.S. Siva Ram, learned counsel for the 2nd respondent/auction purchaser.

None appeared for the 1st respondent/DHR.

4. Learned counsel for the petitioner contends that the petitioner filed the

application within prescribed time i.e., on 21.08.2015 as per Article 127 of the

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Limitation Act, 1963, but the subsequent days i.e., 22.08.2015 and 23.08.2015

happened to be Saturday and Sunday, then the petition was numbered on

24.08.2015. Therefore, the Court below ought not to have dismissed the

application on the ground that the same was filed beyond the period of limitation.

He also contends that the petitioner is at liberty to deposit the EP amount only after

he is permitted by the Court and the EP amount need not be deposited at the time

of filing of the application. He, therefore, prays to allow the revision petition by

setting aside the impugned order.

5. Per contra, learned counsel for the 2nd respondent/auction purchaser submits

that in pursuance of the auction conducted by the Court below for sale of the EP

schedule property, the 2nd respondent participated in the auction conducted on

22.06.2015 and became the highest bidder for a sum of Rs.4,95,000/- and he

deposited the said amount along with other requisite amounts and thereafter, the

Court below confirmed the sale in his favour on 16.02.2016. He contends that the

petitioner filed the E.A. with false and untenable grounds without depositing the

any amount that too with delay, which is a precondition for filing the application

under Order XXI Rule 89 of CPC. He also contends that the petitioner filed the

application on 24.08.2015 and it was numbered on 02.11.2015 instead of filing the

same on or before 22.08.2015 as required under Article 127 of the Limitation Act,

1963. He submits that the Court below rightly dismissed the application on the

ground that the application was not filed within the prescribed period as per Article

127 of the Limitation Act, 1963. He contends that the deposit of the requisite

amount in the Court is a condition precedent or a sine qua non to application for

NV,J C.R.P.No.1088 of 2016

setting aside the execution of sale and such an amount must be deposited within

the prescribed time for making the application. In support of his contention, he

relied on a decision of the Hon'ble Supreme Court in Annapurna Vs.

Mallikarjun1. He, therefore, prays for dismissal of the revision petition.

6. The Court below dismissed the application filed by the petitioner under

Order XXI Rule 89 of CPC on the ground that it was filed beyond the period of

limitation. As per Article 127 of the Limitation Act, 1963, an application to set

aside a sale under Order XXI Rule 89 of CPC has to be filed within 60 days from

the date of sale and the same is the period for making the required deposit. It is an

admitted fact that after succeeding in O.S.No.731 of 2007, the 1st respondent/DHR

filed execution proceedings in E.P.No.268 of 2011. The EP schedule property was

sold on 22.06.2015. It is also an admitted fact that the petitioner did not file the

application within the prescribed time as required under Article 127 of the

Limitation Act. Moreover, the application was not accompanied by the deposit of

the requisite amount in the Court below which is a mandate as per Rule 89 of CPC.

7. In Annapurna case (1 supra), the Hon'ble Court held at paras 6 and 7 of its

judgment as under:

"6. A careful perusal of the provisions in Rules 89 and 92 of Order 21 CPC and Article 127 of the Limitation Act leaves no manner of doubt that although Order 21 Rule 89 CPC does not prescribe any period either for making the application or the required deposit, Article 127 of the Limitation Act now prescribes 60 days as the period within which such an application should be made. In absence of any

(2014) 6 SCC 397

NV,J C.R.P.No.1088 of 2016

separate period prescribed for making the deposit, as per the judgment of the Constitution Bench in Jammulu Ramulu (2001 (7) SCC 71) the time to make the deposit and that for making the application would the same.

7. In Ram Karan Gupta ((2012) 13 SCC 568) it has been held, after considering the Constitution Bench Judgment and other relevant case laws, that deposit of the requisite amount in the court is a condition precedent or a sine qua non to application for setting aside the executiion of sale and such an amount must be deposited within the prescribed time for making the application otherwise the application must be dismissed."

8. Having regard to the facts and the material placed on record and in view of

the law laid down by the Hon'ble Supreme Court as stated supra, this Court is of

the considered opinion that there are no merits in the revision petition and the same

is liable to be dismissed.

9. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.

As a sequel, miscellaneous applications, if any, pending in the criminal

petition shall stand closed.

_____________________________________ VENKATESWARLU NIMMAGADDA, J

24th June, 2022 cbs

NV,J C.R.P.No.1088 of 2016

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

Civil Revision Petition No.1088 of 2016

24th June, 2022

cbs