Special Leave Petition No 8862 of 1986 From the Judgment and order dated 2631986 of the Karnataka High Court in CRP 3084 of 1985
Padmanabha Mahale KK Gupta and Mrs Leelawati Mahale for the Petitioner
The order of the Court was delivered by SEN J
In this special leave petition the short point involved is whether by reason of sub r
2 of r 92 of order XXI of the Code of Civil Procedure 1908 the deposit required by r 89 not having been 736 made within thirty days from the date of sale the application made by the judgment debtor was not maintainable
Sub r
2 of r 92 has been amended by section 72 of the Code of Civil Procedure Amendment Act 1976 by adding the words the deposit required by that rule is made within thirty days from the date of sale the following  or in cases where the amount deposited under rule 89 within such time as may be fixed by the Court to prevent any controversy as to the power of the Court to extend the time to make good the deficit
Unfortunately the words added speak of the deficiency owing to any clerical or arithmetical mistake  on the part of the depositor
The amended r 922 now reads 922
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 thirty days from the date of sale or in cases where the amount deposited under Rule 89 is found to be dificient 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
 The failure to deposit the amount entails confirmation of sale under OXXI r 911 and thereupon the sale becomes absolute
The limitation prescribed for an application under OXXI r 89 was thirty days from the date of sale under Schedule I article 166 of the Limitation Act 1908 now replaced by article 127 of the 
The words may apply to have the sale set aside on his depositing in Court etc
show that not only the application but also the deposit should be made within thirty days from the date of sale
It is not enough to make the application within thirty days
Nor is it enough to make the deposit within thirty days
Both the application and the deposit must be made within thirty days from the date of sale
article 127 of the has now been amended by Act 104 of 1976 and the words sixty days  have now been substituted for the words thirty days 
As a result of the amendment the limitation for an application to set aside a sale in execution of a decree including any such application by a judgment debtor under OXXI r 89 or r 90 is therefore sixty days now
Such being the law there is need for an appropriate amendment of sub r
737 2 of r 92 of the Code
Under OXXI r 89 as it now exists both the application and the deposit must be made within thirty days of the sale
The failure to make such deposit within the time allowed at once attracts the consequences set forth in sub r
2 of r 92
This is an unfortunate state of things and Parliament must enact the necessary change in law
In the present case the auction was held on July 26 1985
The decree holder brought to sale in execution of a money decree for Rs2194845p the property of judgment debtor No 1 comprised of a house and open site appurtenant thereto
The highest bid of Rs22500 offered by the auction purchaser was accepted and the bid was knocked down in his favour
The executing Court fixed the case for confirmation of sale on September 30 1985
In the meanwhile judgment debtor No 1 deposited Rs22000 on August 29 1985 towards payment of the decretal amount together with an application under OXXI r 90 read with section 151 of the Code for setting aside the sale
Again on September 6 1985 he made another application purporting to be under OXXI r 89 read with section 151 of the Code and made a deposit of the balance amount
The auction purchaser objected to the entertainment of the application contending inter alia that the deposit required by r 89 not having been made within thirty days of the date of sale as required by r 922 of the Code the sale was liable to be confirmed under sub r
1 thereof
It is undisputed that the judgment debtor has deposited the entire decretal amount together with 5 of the purchase money by way of commission to the petitioner auction purchaser
The Principal Munsif Dharwar by his order dated October 4 1985 overruled the objection raised by the petitioner
A learned Single Judge Kulkarni J by his judgment dated March 26 1986 declined to interfere with the order of the learned Munsif setting aside the sale
The learned Judge relying upon the decision of the Madras High Court in Thangammal  Ors
vs K Dhanalakshmi  Anr AIR 1981 Mad
254 held that the provisions of OXXI rr 89 and 922 of the Code and that of article 127 of the should receive a harmonious construction
In that view the learned Judge held that the judgment debtor No 1 having deposited the decretal amount together with 5 of the purchase money and having made the application under OXXI r 89 of the Code within sixty days of the sale ie within the period as provided by article 127 of the  the sale was liable to be set aside
The learned Single Judge has brought about the inconsistency between sub r
2 of r 92 of OXXI of the Code and article 127 of the Limitation 738 Act and suggested that steps should be taken to remove this inconsistency
We fully endorse the view expressed by the learned Single Judge
In the result the special leave petition must fail and is dismissed
APJ Petition dismissed


Summary:
The auction of the property of judgment debtor No 1 in execution of a money decree was held on July 26 1985
The highest bid of Rs22000 offered by the auction purchaser was accepted
The case for confirmation of sale was fixed on September 30 1985
In the mean while judgment debtor No l deposited the bid amount on August 29 1985 together with an application under OXXIr90 read with section 151 of the Civil Procedure Code for setting aside the sale
On September 6 1985 he made another application under OXXI r 89 read with section 151 of the Code and made a deposit of the balance amount
The objection raised by the auction purchaser that the deposit required by r 89 not having been made within 30 days of the date of the sale as required by r 922 of the Code the sale was liable to be con firmed under sub r
1 thereof was overruled by the Principal Munsif
This order was upheld by the High Court
Dismissing the SLP this Court  HELD 1
Under OXXI r 89 as it now exists both the application and the deposit must be made within 30 days of the sale
The failure to make such deposit within the time allowed at once attracts the consequences set forth under sub r
2 of r 92
737 A B 2
The limitation prescribed for an application under OXXI r 735 89 was 30 days from the date of sale under Schedule I article 166 of the Limitation Act 1908 now replaced by article 127 of the  article 127 has now been amended by Act 104 of 1976 and the words sixty days  have been substituted for the words thirty days 
736 F G 3
As a result of this amendment the limitation for an application to set aside a sale in execution of the decree including any such application by a judgment debtor under OXXI r 89 or r90 is therefore sixty days now
736 G 4
Sub r
2 of r 92 of OXXI of the Code is inconsistent with article 127 of the 
The Parliament must enact the necessary change in law for an appropriate amendment of sub r
2 of r 92 of the Code
737 A B In the instant case the judgment debtor No 1 having deposited the decretal amount together with 5 of the purchase money and having made the application under OXXI r 89 within sixty days of the sale ie within the period as provided by article 127 of the  the sale was liable to be set aside
737 G H 5
The provision of OXXI rr 89 and 922 of the Code of Civil Procedure and that of article 127 of the  should receive harmonious construction
737 F G Thangammal  Ors
vs K Dhanalakshmi  Anr AIR 1981 Mad
254 approved