Case: AARIFABEN YUNUSBHAI PATEL &amp; ORS.  Vs. MUKUL THAKOREBHAI AMIN &amp; ORS.

set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. 9. The limitation for filing an application to set aside a sale in execution of decree is 60 days in terms of Article 127 of Third Division, Part-1 of the Limitation Act, 1963 (for short the Act). Reference may also be made to Section 5 of the 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 (5 of 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. A bare reading of this provision clearly shows that Section 5 of the Act which deals with extension of time or condonation of delay is not applicable to proceedings under Order XXI Rule 90 of the CPC. Therefore, the delay, if any, cannot be condoned under Section 5 of the Act. 10. That takes us to Section 14 of the Act, which reads as follows:- 14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. In terms of this Section the time spent by the applicant for prosecuting with due diligence other civil proceedings may be excluded if such proceedings are prosecuted in good faith in a court which, from defect of jurisdiction or other cause, is unable to entertain it. 11. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.2008. On behalf of R-1 it is urged that since the writ petition was disposed of on 17.07.2008 and the objection to the execution petition was filed on 20.06.2008, the same is within limitation. 12. We are unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. We are prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R-1 should have immediately filed the application before the executing court. The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence. 13. Even if we accept the case of R-1, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. If we exclude that period then we have 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, by giving benefit of all days of passing of the orders then also R-1 & R-3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. Since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Therefore, the appeals have to be allowed on this short ground.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are constrained to observe that the High Court totally ignored the order of this Court quoted hereinabove. This Court had specifically directed the executing court to decide both, the issue of limitation and objections on merits. This was obviously done with the purpose that in case later if the issue of limitation is decided in favour of the objectors, R-1 and R-3, then the matter again should not be remanded for decision on merits of the case. The issue of limitation could not have been ignored and should have been decided by the High Court7. We may note thatit has been strenuously urged by Mr. Nikhil Goel, learned counsel for the Respondents that the sale is fraudulent without following the procedure prescribed by law,but we are clearly of the view that first we have to decidewhether the objections filed by the respondents were filed within time or. In case the petition is filed beyond the period of limitation it is not necessary for the Court to go into other issuesA bare reading of this provision clearly shows that Section 5 of the Act which deals with extension of time or condonation of delay is not applicable to proceedings under Order XXI Rule 90 of the CPC. Therefore, the delay, if any, cannot be condoned under Section 5 of the Act11. As far as the present case is concerned it is not even disputed by R-1 that it had knowledge about the sales on 18.12.2007 when counsel appearing for R-3, had sought permission to file the objection application under Order XXI Rule 90 of the CPC. The writ petition was filed on 26.12.2007. On 21.04.2008, R-1 withdrew the SLP before this Court on the ground that an application has been filed by R-2 before the executing court on 18.03.2008. The writ petition itself was dismissed on 17.07.200812. We are unable to accept this proposition. Any person claiming benefit of Section 14 of the Act can only claim exclusion of time of that period for which it had been prosecuting another remedy with due diligence and in good faith. We are prima facie of the view that it cannot be said that the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R-3 had made a statement that he would file objections to the execution petition. However, assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R-1 should have immediately filed the application before the executing court. The continuance of the proceedings before the High Court can neither be said to have been done in good faith nor in exercise of due diligence13. Even if we accept the case of R-1, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. If we exclude that period then we have 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, by giving benefit of all days of passing of the orders then also R-1 & R-3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. Since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Therefore, the appeals have to be allowed on this short ground.