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Vannisami thevar and anr. Counter-petitioner and Newly Added Party Vs. Periayaswami thevar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in33Ind.Cas.996
AppellantVannisami thevar and anr. Counter-petitioner and Newly Added Party
RespondentPeriayaswami thevar and anr.
Cases ReferredMariappa Annam v. Hari Hara Iyer
Excerpt:
civil procedure code (act v of 1908), section 151, order xxi, rules 89 and 92(2) - application to set aside sale made in time--deposit after 30 days--application, if entertainable--limitation--extension of time for deposit--power of court. - .....mr. rajah aiyar's argument is that the application alone under order xxi, rule 89, of the code of civil procedure need be made within 30 days as required by article 166 of the limitation act but the deposit might be made either within the 30 days mentioned in order xxi, rule 92, clause (2), of the code of civil procedure, or within such further time as the court might choose to give in virtue of its alleged inherent powers under section 151 of the code of civil procedure.2. in the first place, it is clear from the decision in karunakara menon v. krishna menon 27 ind. cas. 952: 2 l.w.196 that the 'provision in order xxi, rule 89, is in the nature of an indulgence to the judgment-debtors' and that 'courts are bound to see that the provisions of law in this respect are very strictly.....
Judgment:

1. Mr. Rajah Aiyar's argument is that the application alone under Order XXI, Rule 89, of the Code of Civil Procedure need be made within 30 days as required by Article 166 of the Limitation Act but the deposit might be made either within the 30 days mentioned in Order XXI, Rule 92, Clause (2), of the Code of Civil Procedure, or within such further time as the Court might choose to give in virtue of its alleged inherent powers under Section 151 of the Code of Civil Procedure.

2. In the first place, it is clear from the decision in Karunakara Menon v. Krishna Menon 27 Ind. Cas. 952: 2 L.W.196 that the 'provision in Order XXI, Rule 89, is in the nature of an indulgence to the judgment-debtors' and that 'Courts are bound to see that the provisions of law in this respect are very strictly conformed to.' That the deposit within 30 days is much more important than the application to set aside has been held in some cases see Mariappa Annam v. Hari Hara Iyer 22 Ind. Cas. 291 and that even an oral application to sot aside is sufficient and can be presumed from an affidavit accompanying the deposit, provided the deposit itself is made within 30 days. Mr. Rajah Aiyar's argument, if accepted, would make the deposit within 30 days a secondary matter.

3. Further we are of opinion that the words 'on his depositing' in Order XXI, Rule 89, of the Code of Civil Procedure qualify 'apply' and that such deposit is a condition precedent to the making of the application.

4. Lastly, we hold that the Court has no power to extend the time given by the Code (and not by an order of the Court) for making the deposit and that the requirements of Order XXI, Rule 92, Clause (2), of the Code of Civil Procedure that the deposit should be made within 30 days is not merely directory but mandatory.

5. Order XXI, Rule 92, Clause (2), of the Code of Civil Procedure is not happily worded. An order allowing an application to set aside the sale is the same thing as an order setting aside the sale and it is, therefore, superfluous to say that on the allowing of such an application, the Court shall make an order setting aside the sale.

6. If, again, the deposit should precede or be contemporaneous with the application, it was unnecessary to prescribe 30 days for the deposit when 30 days are prescribed by the Limitation Act for the application, unless the Legislature intended not to allow to the making of the deposit the extension of time permitted to applications by the Limitation Act in certain contingencies, such as the Court being closed on the last day of limitation. However, we are clear that the learned Subordinate Judge was right in his view that the Court had no power to extend the 30 days fixed in the Code for making the required deposit, as Section 151 of Civil Procedure Code cannot be legitimately invoked for extending periods of limitation and for overruling Legislative provisions.

7. We dismiss the appeal with costs.


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