ANNAPURNAversusMALLIKARJUN & ANR.

                    [2014] 7 S.C.R. 299

                        ANNAPURNA                                  A
                              v.                    ;.,
                   MALLIKARJUN & ANR.
              (Civil Appeal No. 4469 of 2014)
                      APRIL 11, 2014.
                                                                   B
     [ANIL R. DAVE AND SHIVA KIRT! SINGH, JJ.]

    CODE OF CIVIL PROCEDURE, 1908:

     0. 21, r. 89 - Application to set aside sale on deposit-      c
Period of limitation to make the deposit - Amount deposited
on the opportunity given by writ court - Held: Deposit of the
requisite amount in the court is a condition precedent or a sine
qua non to application for setting aside the execution of sale
and such an amount must be deposited within the prescribed
                                                                   0
time for making the application otherwise the application must
be dismissed - Order of High Court directing reconsideration
of application under 0. 21, r. 89, set aside - Limitation Act,
1963 - Schedule I - Article 127.

     The instant appeal arose out of the order of the High         E
Court allowing the writ petition filed by the judgment-
debtor and setting aside the orders of the executing court
and the appellate court dismissing his application under
0. 21, r. 89, C.P.C. and remitting the ·matter to the
executing court for disposal of the application under 0.           F
21, r. 89, CPC, primarily because the judgment-debtor on
the opportunity given by the writ Court, had deposited the
amount.
   . Allowing the appeal, the Court
                                                                   G
    HELD: A co.njoint reading of rr.89 and 92 of 0. 21,
CPC and Article 127 of the Limitation Act, 1963 makes it
clear that although 0. 21 r. 89, CPC does not prescribe
any period either for making the application or the
                           299                                     H
    300      SUPREME COURT REPORTS                 [2014] 7 S.C.R.


A required deposit, Article 127 of the Limitation Act
  prescribes 60 days as the period within which such an
  application should be made. Deposit of the requisite
  amount in the court is a condition precedent or a sine qua
  non to application for setting aside the execution of sale
B and such an amount must be deposited within the
  prescribed time for making the application otherwise the
  application must be dismissed. In the instant case, in
  absence of required deposit made by the judgment-
  debtor within the time mandated by law, the High Court
C erred in directing for re-consideration of the petition
  under 0. 21 r. 89, CPC, as such an exercise would be only
  an exercise in futility because the executing court does
  not have any option but to reject the petition. Accordingly,
  the judgment under appeal is set aside. [Paras 7-9) [303-
D C-H]
         Dadi Jagannadhamn v. Jammlu Ramulu & ors. 2001
    (2) Suppl. SCR 60 = (2001) 7 SCC 71; and Ram Karan
    Gupta v. J.S. Exim Ltd. & Ors. 2012 (12) SCR 683 = (2012)
    13 sec 568 - relied on
E                       Case Law Referen<:e :
          2001 (2) Suppl. SCR 60      relied on         Para 5
                                            /'
          2012 (12) SCR 683           reliect on        Para 5
F       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4469 of 2014.
        From the Judgment and Order dated 18.02.2010 of the
    High Court of Karnataka at Bangalore in WP No. 10550 of
    2006.
G
        Girish Ananthamurthy (for Vaijayanthi Girish) for the
    Appellant.
        S.K. Kulkarni, M. Girish Kumar, Ankur S. Kulkarni for the
    Respondents.
H
        ANNAPURNA v. MALLIKARJUN & ANR.                         301


     The Judgment of the Court was delivered by                         A
     SHIVA KIRTI SINGH, J. 1. Leave granted.

       2. The matter relates to an Execution Proceeding in which
 the Executing Court put a house bearing CTS No.1610/B to
 auction and after rejecting the objections raised by the               B
 judgment-debtor, Respondent no.1 herein, confirmed the Court
  Sale by issuing Certificate of Sale in favour of the auction
  purchaser, the Appellant. Against the order dated 18.12.2004
  passed by the Executing Court dismissing his application under
  Order XXI Rule 89 of the. Code of Civil Procedure (CPC) the           C
 judgment-debtor preferred an appeal being Miscellaneous
  Appeal No.1/2005 before Civil Judge (Sr. Division). That
  appeal was dismissed on 26. 7 .2006 with a finding that,. the
  appeal was not maintainable. The judgment-debtor then
  preferred Writ Petition No.10550 of 2006 before the High Court        D
  of Karnataka, Circuit Bench at Gulbarga to challenge the order
  of the Executing Court as well as of the Appellate Court. The
  High Court, by the order under appeal dated 18.2.2010, allowed
. the writ petition by quashing the impugned order of the
  Executing Court and remitting the matter back to the Executing        E
  Court for fresh disposal of judgment-debtor's application under
  Order XXI Rule 89 of the CPC.

      3. The moot question of law raised in this appeal does not
 require this C.ourt to go into facts in any detail. The issue of law
 raised on behalf of the Appellant is whether the High Court could      F
 have ignored the settled law that under Article 127 of the
 Limitation Act, 1963 an application to set aside a sale under
 Order XXI Rule 89, CPC has to be filed within 60 days from
 the date of sale.and same is the period for making the requirep
 deposit.                                                               G

      4. On facts, it is sufficient to notice that after success in
 O.S.No.26/1969, the decree-holder instituted execution
 proceedings in E.P.No.17/1993. The property in question was
 sold through Court Sale on 7.8.2004. The judgment-debtor filed         H
    302      SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A  an application under Order XXI Rule 89, CPC on 3.9.2004 to
   set aside the Court Sale along with an application to appqint
   a Court Commissioner to find out the market value of the sold
   property. Decree-holder filed objections .and thereafter by
   different orders passed on 18.12.2004 the Executing Court
B rejected the applications of the judgment-debtor and issued
   Certificate of Sale in favour of the auction purchaser. On
   15.1.2005, the Executing Court closed the Execution Petition
  as fully satisfied. Admittedly, at no point of time, the judgment-
  debtor made any deposit as required by Order XXI Rule 89,
C CPC before the Executing Court. As noticed earlier, judgment-
  debtor' s Miscellaneous Appeal was dismissed as not
  maintainable. In the Writ Petition preferred by him, the High
  Court agreed that Miscellaneous Appeal was not maintainable
  but primarily because the judgment-debtor, on an opportunity
  given by the Writ Court, had deposited Rs.25,000/- over and
0
  above the amount for which the property was sold, impugned
  order was passed to remit the matter back to the Executing
  Court for fresh disposal of the application under Order XXI Rule
  89 of the CPC with liberty to the writ petitioner to place available
  materials before th'3 Executing Court to show that the value of
E the property is more than the price obtained in the Court
  auction.

         5. According to learned counsel for the Appellant, the High
    Court erred in ignoring the relevant provisions such as Rules
F 89 and 92 of Order XXI of the CPC and Article 127 of the
    Limitation Act otherwise it would have come to the only possible
  . conclusion that in absence of required deposit being made
   within 60 days, the Executing Court had no option but to reject
   the petition under Order XXI Rule 89 of the CPC. In support of
G his submission, learned counsel placed reliance upon a recent
   judgment of this Court in the case of Ram Karan Gupta v. J. S.
   Exim Ltd. & Ors. (2012) 13 SCC 568 and a Con.stitution Bench
   judgment in the case of Dadi Jagannadham v. Jammlu
   Ramulu & Ors. (2001) 7 SCC 71 which has been referred to
H and relied upon in the case of Ram Karan Gupta (supra).
        ANNAPURNA v. MALLIKARJUN & ANR.                     303
             [SHIVA KIRTI SINGH, J.]

     6. On the other hand; learned counsel for Respondent          A
no.1, judgment-debtor, submitted that the High Court has
adopted a just and proper course to give another chance to the
judgment-debtor to prove his objection that the property· sold
in the court auction was not valued properly. He submitted that
such a course of action was warranted by the peculiar facts arid   B
circumstances of the case.

     7. A careful perusal of the provisions in Rules 89 and 92
of Order XXI, CPC and Article 127 of the Limitation Act leaves
no manner of doubt that although Order XXI Rule 89, CPC does
not prescribe any period either for making the application or      C
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 separate period
prescribed for making the deposit, as per judgment of the
Constitution Bench in the case of Jammlu Ramulu (supra) the        D
time to make the deposit and that for making the application
would be the same.

     8. In the case of Ram Karan Gupta (supra), it has been
held, after considering the Constitution Bench judgment and        E
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 execution of sale and such an
amount must be deposited within the prescribed time for
making the application otherwise the application must be           F
dismissed.

      9. In view of the settled law on the issue as noted above,
in this case it must be held that the High court committed grave
error of law in not noticing the relevant provisions of CPC and
the Limitation Act and in allowing the Writ Petition for re-       G·
consideration of the petition under Order XXI Rule 89, CPC. In
absence of required deposit made by the judgment-debtor
within the time mandated by law, such an exercise would be
only an exercise in futility because the Executing Court does
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    304      SUPREME COURT REPORTS                  [2014] 7 S.C.R.

A Rot have any option but to reject the petition. In such a situation,
  the judgment under appeal is set aside and. the Appeal is
  allowed with a cost of Rs.10:000/- (Rupees Ten Thousand)
  payable by Respondent no.1 to the Appellant.
B   Rajendra Prasad                                    Appeal allowed.