BANDA CHINNA SUBBARAYUDU & ORS. v.

THAILAM VISHANATHA RAO & ANR. (Civil Appeal No. 7153 of 2009)

OCTOBER 27, 2009 [Altamas Kabir and Cyriac Joseph, JJ.]

[2009] 15 (Addl.) SCR 470

The following Order of the Court was delivered

ORDER

1. Leave granted.

2.  This  appeal  is  directed against  the  judgment  and order  dated 28th  

March,  2008, passed by the Andhra Pradesh High Court  in Civil  Revision  

Petition No. 4778 of 2007, dismissing the Revisional Applications, which had  

been filed by the appellants herein.

3. The appellants suffered a decree for recovery of money in O.S. 458/98,  

in the court or Principal Junior Civil Judge, Proddatur. Pursuant to the said  

decree, the respondent No.1 herein, who is the plaintiff-decree-holder, filed  

Execution Proceedings, 352 of 2000, for sale of the property indicated in the  

said proceedings. On 25th November, 2003, the sale was conducted and the  

property in question was sold to the second respondent. On the same date, in  

an appeal filed by one Chennakkagari Ravindranath Reddy, being A.S. No.  

10/2003, the said Execution Proceedings No. 352/2000 were stayed.

4.  Subsequently,  in  the  said  Execution  Proceedings  the  

appellants/judgment-debtors filed an application under Order 21 Rule 89 of  

the C.P.C. to set aside the sale, which had been held on 25th November,  

2003. The respondent No.1 herein filed objection to the said application for  

setting aside the sale mainly on two grounds, namely,  (1) that the deposit  

made  by  the  judgment-debtor  was  less  than  what  was  required  to  be  

deposited under Order 21 Rule 89 of the Code; and (2) that the application

had been filed well beyond the period of limitation prescribed under Article  

127 of the Limitation Act.

5. The application filed by the appellant/judgment-debtor was dismissed  

by the Executing Court on both grounds. Even in appeal, the said order was  

confirmed. When the matter was taken to the High Court, it found in favour of  

the appellant as far as the amount of deposit  is concerned. However, the  

High  Court  affirmed  the  order  of  the  Executing  Court,  as  well  as  of  the  

Appellate  Court,  on  the  question  of  limitation.  Aggrieved  thereby,  the  

appellants have preferred the instant appeal.

6. Appearing in support of the appeal, Mr. Shetty, learned senior counsel,  

submitted that none of the courts below had taken into account the fact that in  

view of the stay obtained by the said Chennakkagari Ravindranath Reddy, it  

was  not  possible  for  the  appellants  to  take  steps  in  the  Execution  

Proceedings  by  filing  the  application  for  setting  aside  the  sale.  In  this  

connection, a few dates would be relevant. As noticed hereinbefore, the suit  

of the respondent No.1 was decreed in 1998 and after the decree was put  

into execution, the sale of the judgment-debtor’s property was conducted on  

25th November,  2003,  on which date Chennakkagari  Ravindranath Reddy  

obtained a stay of the Execution Proceedings in the appeal filed by him. The  

sale was, however, yet to be confirmed. In the meantime, on 2nd December,  

2004, the appeal filed by the said third party Chennakkagari  Ravindranath  

Reddy was dismissed and the stay order stood vecated. An application was  

made by the appellant/judgment-debtor under Order 21 Rule 89 CPC and the  

amount, as required to be deposited under Rule 89(1), was deposited on 15th  

December, 2004.

7. Mr. Shetty has questioned the decision of the courts below, including  

the High Court,  on the ground that since the Execution Proceedings were  

stayed, albeit, at the instance of a third party, the appellant was unable to  

take any steps in the said proceedings for setting aside the sale and once the

stay was lifted, he proceeded to take steps and that, accordingly, the period  

during which the Execution Proceedings remained stayed, should have been  

excluded from the period as contemplated under Article 127 of the Limitation  

Act. This factor does not appear to have been considered by the Executing  

Court or the appellate court and was for the first time considered by the High  

Court, which held that the stay of the proceedings at the instance of a third  

party  could  not  come  to  the  aid  of  the  appellant/judgment-debtor  for  the  

purpose of filing an application under Order 21 Rule 89 of the Code. In effect,  

the finding of the High Court was that such pendency would not come to the  

aid of the Judgment-debtors for extending the period of limitation prescribed.

8.  The only  question  we are,  therefore,  left  to  answer  is  whether  the  

appellants would be entitled to the benefit of the said period during which he  

was  prevented  by  the  Execution  Proceedings  in  taking  steps  to  file  the  

application for setting aside the sale.

9.  Having  heard  learned  counsel  for  the  respective  parties  and  

considering the facts, as disclosed in the records, we are unable to uphold  

the  decision  of  the  High  Court  in  this  regard.  Whether  the  stay  of  the  

Execution Proceedings was obtained by the judgment-debtor or by any other  

person is hardly relevant except to decide whether the judgment-debtor could  

have taken any steps in the proceedings which were stayed. That a stay of  

the  Execution  Proceedings  was  granted  on  25th  November,  2003,  is  

admitted.  That  such  stay  was  vacated  on  2nd  December,  2004,  is  also  

admitted. If the period between 25th November, 2003, and 2nd December,  

2004, when the stay was vacated is excluded, then the steps taken by the  

judgment-debtor thereafter under order 21 Rule 89 CPC would be in the time.

10. In our view, since the appellants were prevented by the stay order  

from taking any further steps in the Execution Proceedings, they would be  

entitled to the benefit of the said period and the same has to be excluded

while considering the question of limitation as prescribed under Article 127 of  

the Limitation Act.

11. Having regard to the above, the appeal is allowed and the orders of  

the High Court, so far as it relates to the question of limitation and affirming  

the view of the lower courts, is set aside. The Executing Court is directed to  

proceed with the application filed by the appellants herein under Order 21  

Order 89 CPC, being E.A. 333 of 2005, and dispose of the same at an early  

date, since the matter has already been considerably delayed.

12. Having regard to the circumstances involved, there will be no orders as to  

costs.