IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH JANUARY 2008/27TH POUSHA 1929 CRP.No. 943 of 2006(I) --------------------------- CMA.30/2004 of PRINCIPAL SUB COURT, NORTH PARAVUR OS.630/1997 of MUNSIFF COURT,ALUVA (EA.256/03 IN EP.111/01) .......................................... REVN. PETITIONER: APPELLANT/PETITIONER: ---------------------------------------------------- SURESH, AGED 47, S/O. KRISHNANKUTTY, MOONJELY HOUSE, PALLISSERY KARA, MOOKKANNOOR VILLAGE,ALUVA TALUK. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENTS: RESPONDENTS: -------------------------------------- 1. MATHAI, S/O. CHANDI,(DIED). 2. R. JAMES, S/O. XAVIER, KALLUKULAM HOUSE, ERUMATHALA KARA, ALUVA WEST VILLAGE. 3. ELIYAMMA, W/O.CHANDI MATHAI, CHEMBAKKOTTUKUDIYIL, AYAKKATTUKARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK. 4. VALSA, D/O. CHANDI MATHAI, -DO- -DO-. 5. ALEX, S/O.CHANDI MATHAI, -DO- -DO-. 6. JAIN, D/O.CHANDI MATHAI, -DO- -DO-. R2 BY ADV. SRI.DEEPU THANKAN R3 & R4 BY SRI.M.M.MATHEW (MANNOOR ETTONNIL) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 943 OF 2006 = = = = = = = = = = = = = = = Dated this the 17th day of January, 2008. O R D E R This revision petition is preferred against the order in E.A.256/03 as confirmed by the order in CMA 30/04 which is an application for setting aside the sale filed under Order 21 Rule 90 of CPC by the judgment debtor on the ground of irregularity in conducting the sale. Both the Courts below found that the petition itself is barred by limitation and also incidentally found that there are no serious grounds to set aside the sale. 2. I have heard the counsel appearing for the judgment debtor, decree holder and the auction purchaser. I am informed that auction purchaser also moved an application for setting aside the sale on the ground that the property which he has purchased is encumbered in other proceedings as well and therefore he is a total looser and therefore the sale is to be set aside. 3. So far as the question of limitation is concerned the Courts below had erred in arriving at a decision for the CRP NO. 943 of 2006 -:2:- following reasons. The application to set aside the sale has to be filed within 60 days from the date of confirmation of sale. The sale was confirmed on 15.7.03. So there will be 60 days, i.e. 16 days in July, 31 days in August and 13 days in September. Even if the date of 15.7.03 is excluded even then the last date will be 12th September, 2003. Ordinarily the date on which it is confirmed has to be excluded in calculating the period of limitation. Under Section 10 of the General Clauses Act when the Court does not work on a day when the period of limitation ends, the next working day shall be taken as the day for filing he case. The learned counsel for the revision petitioner has produced before me the Calender of the year 2003 which shows that September 13 and 14 are second Saturday and Sunday and therefore only possible date that on which the petition could have been filed is 15.9.03. The said application is filed on 15.9.03 and therefore the question of limitation does not arise in this case. 4. Now, it is for consideration whether this Court has to go to the merits of the case in view of the subsequent CRP NO. 943 of 2006 -:3:- developments. The decree holder is only entitled to the amount which he has been given to him under the decree. The substantial person affected will be the auction purchaser. The auction purchaser does not have any objection in setting aside the sale. The judgment debtor also agrees that he will pay the entire decree amount with interest till the date of deposit including the suit costs and the execution costs. Therefore the entitlement of the decree holder is only to have that amount. Since he is not the auction purchaser and as the auction purchaser has no objection in setting aside the sale when the amount due to the decree holder is tendered, it is only just and equitable that the sale is set aside. Therefore I dispose of the revision petition as follows. 5. I find that the application to set aside the sale is not barred by limitation. I direct the Court below to set aside the sale on condition that the judgment debtor deposits the decree amount with interest and costs(of the suit and execution) as provided in the decree within a time frame of six weeks from today. If the amount is deposited full CRP NO. 943 of 2006 -:4:- satisfaction be recorded, sale be set aside and the decree holder be permitted to withdraw the amount from the Court deposit. The amount already in deposit which is done by the auction purchaser be returned to him on setting aside of the decree on account of the payment made by the judgment debtor to the decree holder. The C.R.P. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-