CIVIL REVISION No.655 OF 2004 Against the order dated 22.3.2004, passed in Misc. Appeal no.64/2000 by the learned Addl. District Judge (Fast Track Court 1st), Arrah, Bhojpur. 1. RAJMUNI DEVI wife of Late Ram Ashan Singh, resident of village Dhamar Police Station Ara Muffasil, District Bhojpur 2. Kamal Kant Singh 3. Kali Kant Singh 4. Rajiv Ranjan Singh - All sons of Late Ram Ashan Singh 5. Gita Singh, wife of Tarkeshwar Singh 6. Rita Singh, wife of Satyanarayan Singh 7. Nita Singh, wife of Bindhayachal Singh ….Opposite Party Respondent 1st set)- Petitioners Versus 1. RAM NARESH SINGH @ BUTAN SINGH son of Sri Ram Singh resident of Village Dhamar PS Ara Muffasil District Bhojpur (Petitioner-Appeallnt)… Opp. Party 2. Nirmani Devi, wife of Bishwanath Singh, resident of village Ramlalpur, PS Fatuah District Patna (Opp.party ..Respondent 2nd set) …… Opposite Parties ********* For the Petitioners : Mr. Chittaranjan Singh, Sr. Advocate Mr. Bindhyachal Singh, Advocate Mr. Satya Prakash, Advocate For the Opp. Parties : Mr. Raghwendra Kumar Singh, Advocate Mr. Sarveshwar Tiwary, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR S K Katriar, J. This civil revision application under section 115 of the Code of Civil Procedure is directed against the order dated 22.3.2004, passed by the learned Additional District Judge, Fast Track Court 1st, Ara, Bhojpur, in Misc. Appeal no.64/2000 (Ram Naresh Singh @ Butan Singh v Ram Ashan Singh), whereby the appeal preferred by Ram Naresh Singh (Opposite Party no.1 herein), has been allowed, and the order dated 26.8.2000, passed by the learned Sub Judge, Ara, in Misc. Case no.7/93, has been set aside. 2 2. A brief statement of facts essential for the disposal of this civil revision application may be indicated. Ram Ashan Singh, the husband of Rajmuni Devi, had instituted Money Suit no.79/83, against Harnam Singh and Ram Naresh Singh, for a money decree. By judgment dated 26.3.82 (annexure 1), passed by the learned 2nd Addl. Sub Judge, Ara, the suit was decreed against Harnam Singh, and was dismissed against Ram Naresh Singh. It may incidentally be mentioned that Harnam Singh is the uncle of Ram Naresh Singh. Harnam Singh challenged the judgment by filing First Appeal no.242 of 1982, in this Court which was rejected for non-compliance of peremptory order dated 30.10.90. His restoration application bearing MJC no.535/94, was also rejected by order dated 1.5.96, as a result of which the judgment and decree of the learned trial court attained finality. 2.1) In the meantime, the decree-holder levied Execution Case no.9 of 1982, for execution of the decree. Curiously enough, Ram Naresh Singh filed an application to be impleaded as a party in the execution case which was rejected by order dated 27.11.87. Ram Naresh Singh challenged the order by preferring Civil Revision no.1862 of 1987, which was allowed by this Court by order dated 25.9.92, whereby the order dated 27.11.87 was set aside, and he was permitted to be impleaded as a party in the execution case. 2.2) Meanwhile, in view of the failure on the part of Harnam Singh to deposit the decretal amount, his property was auctioned sold in favour of Ram Ashan Singh by order dated 16.6.88. Ram Naresh Singh filed an application in the execution case which was registered 3 as Misc. Case no.7/93, praying therein that the order of auction sale may be set aside. The same was rejected by the learned execution court by order dated 26.8.2000, inter alia, on the ground that Ram Naresh Singh has had no locus standi to challenge the auction sale because his interest in the property was not involved. Ram Naresh Singh challenged the same by preferring the aforesaid Misc. Appeal no.64/2000, which has been allowed by the impugned order on the ground that there were irregularities in the auction sale. Hence this civil revision application at the instance of the decree-holders. 3. Before we proceed further, we would like to indicate that Ram Ashan Singh died during the pendency of the present proceeding, and has been substituted by his heirs. 4. While assailing the validity of the impugned order, learned counsel for the decree-holders submits that, in view of the position that the interest of Ram Naresh Singh in the property auction sold was not involved, he could not maintain Misc. Case no.7/93, filed under the provisions of Order 21, Rule 90, of the Code of Civil Procedure and, therefore, the impugned order is bad in law. He next submits that, in view of the provisions of Order 21, Rule 90, read with Article 127 and Section 5 of the Limitation Act, Misc. Case no.7/93 is barred by limitation. He relies on the following reported judgments:- (i) Mohan Lal v. Hari Prasad Yadav (1994) 4 SCC 177 (ii) Ramashray Pd. Choudhary v. Krishna Nandan Singh 1999(2) PLJR 776 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The learned execution 4 court clearly held in its order 26.8.2000, passed in Misc. Case no.7/93, that Ram Naresh Singh has had no interest whatsoever in the property auction sold on 16.6.88. In that view of the matter, we are clearly of the view that Ram Naresh Singh has no Locus Standi to maintain Misc Case no.7/93, and equally his appeal was not maintainable. The learned court of appeal below has erred in passing the impugned order, whereby he has set aside the auction sale on the ground that there was irregularity in the auction sale. Once it is held that he could not maintain the miscellaneous case under the provisions of Order 21, Rule 90, CPC, the learned appellate court has had no jurisdiction to declare the auction sale invalid on the application/appeal of Ram Naresh Singh. We, therefore, uphold the contention advanced on behalf of the decree-holders. 6. As to the second contention, the decree-holders are on equally firm ground. Order 21, Rule 90, CPC is headed “Application to set aside sale on the ground of irregularity or fraud”. Order XX! Is headed “Execution of decrees and orders”. It is elementary to state that the application can be filed by a person who has had interest in the property which was auction sold. As stated hereinabove, Ram Naresh Singh has no interest to auction sale the property. Article 127 of the Schedule to the Limitation Act reads as follows:- Description of application Period of limitation Time from which period begins to run ----------------------------------- --------------------------- ----------------------- 127. To set aside a sale in Sixty days The date of sale execution of a decree, including any such application by a judgment-debtor. 5 In other words, the application under Order 21, Rule 90, could have been filed within a period of sixty days from the date of auction sale. The auction sale had taken place on 16.6.88, and the application was filed on 15.5.93. This has to be read with Section 5 of the Limitation Act, which reads as follows:- “5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” (Emphasis added) It is thus evident that the provision for condonation of delay under Section 5 of the Limitation Act is not applicable to proceedings under Order XXI of the Code of Civil Procedure. The Parliament has advisedly not provided for extension of the prescribed period of limitation so that execution proceedings are not delayed. The Parliament intends to defeat the age-old adage that the problem of the decree-holder starts after he obtains the decree. In that view of the matter, Misc. Case no.7/93 preferred by Ram Naresh Singh under Order 21, Rule 90, was clearly hit by the bar limitation engrafted in Article 127, an aspect of the matter over-looked by the learned execution court as well as the learned appellate court. 7. Learned counsel for the decree-holders has rightly relied on the judgment of the Supreme Court in Mohan Lal v Hari Prasad Yadav (supra), wherein this provision of law has been considered. The Supreme Court has held that the provision for condonation of delay in terms of Section 5 of the Limitation Act is not applicable to the 6 proceeding under order 21, Rule 90 of the Code of Civil Procedure. A learned single Judge of this Court had the occasion to follow and apply the same in the case of Ramashray Pd. Choudhary vs. Krishna Nandan Singh (supra). 8. In other words, in the instant case, the application of Ram Naresh Singh could not have been filed beyond the period of sixty days commencing from the date of auction sale. Misc. Case no.7/93 was obviously barred by limitation, unaided by the provision for condonation of delay. In that view of the matter, the order of the learned appellant court is unsustainable in law. 9. In the result, this civil revision application is allowed. The order dated 22.3.2004, passed in Misc. Appeal no.64/2004, is hereby set aside. There shall be no order as to costs. ( S K Katriar ) Patna High Court, Patna The 11th of October 2010 AFR/mrl