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PETITIONER: P.K. UNNI

       Vs.

RESPONDENT: NIRMALA INDUSTRIES & ORS.

DATE OF JUDGMENT20/02/1990

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SINGH, K.N. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR  933            1990 SCR  (1) 483  1990 SCC  (2) 378        JT 1990 (1)   423  1990 SCALE  (1)316  CITATOR INFO :  R          1992 SC  96  (14)

ACT:     Order XXI Rule 89 and 92(2)--Immovable properly sold  in execution of decree-Period of limitation for making  deposit for application to set aside the sale.

HEADNOTE:     In this appeal by special leave brought by the  auction- purchaser against the Judgment of the Madras High Court  the sole question for consideration is as regards the period  of limitation for making a deposit to make an application under Rule  89 of Order XXI of the Civil Procedure Code,  1908  to set  aside the sale of immovable property sold in  execution of  a  decree. Whether the deposit is to be made  within  30 days  from the date of the sale as required by sub-rule  (2) of  Rule 92 of Order XXI or within 60 days from the date  of sale as provided in Article 127 of the Limitation Act, 1963?     Following  its earlier decision in Thangammal & Ors.  v. V.K.  Dhanalakshmi & Anr. and the decision of this Court  in Basavantappa  v.  Gangadhar Narayan Dharwadkar &  Anr.,  the High Court had held that Article 127 governed the period  of limitation  to make a deposit in terms of Rule  89.  Setting aside  the  judgment of the High Court on  the  question  of limitation, this Court in allowing the appeal,     HELD:  The correct construction of Rule 92(2)  of  Order XXI of the Civil Procedure Code, 1908 leads to the irresist- ible conclusion that the time for making a deposit in  terms of  Rule 89 of Order XXI is 30 days, and Article 127 of  the Limitation  Act, 1963 prescribing the period for  making  an application under Rule 89 has no relevance to the prescribed time  for  making  the deposit. Neither  provision  has  any effect on the other as to time. [489G-H; 490A]     Basavantappa  v.  Gandadhar Narayan Dharwadkar  &  Anr., [1986] 4 SCC 273, over-ruled.     Nalinakaya Bysack v. Shyam Sunder Haldar & Ors.,  [1953] SCR  533 at 545; Mersey Docks v. Henderson, [1988]  13  App. Cas. 595,602; 484              SUPREME COURT REPORTS   [1990] 1 S.C.R. Crawford  v. Spooner, [1846] 6 Morre P.C. 1, 8,  9;  Seaford

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Court  Estates  v. Asher, All E.R., [1949] 2.155 at  164  M. Pentiah  &  Ors. v. Muddala Veeramallappa & Ors.,  [1961]  2 S.C.R.  295 at 314 Heydon’s case (1584) 3 Co Rep 7a:  76  ER 637;  Dakshayini  & Ors. v. Madhavan, AIR 1982  Kerala  126, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1308  of 1990.     From the Judgment and Order dated 9.12.86 of the  Madras High Court in A.A.O. No. 421/83.     K. Parasaran, B. Ramamoorthy and V. Balachandran for the Appellant.     M.R.  Narayanaswamy and A.T.M. Sampath for the  Respond- ents. The Judgment of the Court was delivered by THOMMEN, J. Special leave is granted.     This appeal arises from the judgment of the Madras  High Court  in  A.A.O. No. 421 of 1983. The  sole  question  that arises for consideration is as regards the period of limita- tion for making a deposit to make an application under  Rule 89  of  Order XXI of the Civil Procedure Code, 1908  to  set aside  sale  of immovable property sold in  execution  of  a decree.  Has the deposit to be made within 30 days from  the date of sale as required by sub-rule (2) of Rule 92 of Order XXI  or within 60 days from the date of sale as provided  in Article 127 of the Limitation Act, 1963?     The High Court by the impugned judgment held that  Arti- cle 127 governed the period of limitation to make a  deposit in  terms of Rule 89. In coming to that conclusion the  High Court followed its earlier decision in Thangammal & Ors.  v. K.  Dhanalakshmi & Anr., AIR 1981 Mad. 254 and the  decision of this Court in Basavantappa v. Gangadhar Narayan  Dharwad- kar  &  Anr., [1986] 4 SCC 273. In the  latter  decision,  a Bench  of  two  Judges of this Court  held  that  Thangammal (supra)  was correctly decided on the point and the  deposit made  within 60 days from the date of sale was  well  within time. 485     We  shall read the relevant provisions insofar  as  they are material. Rule 89 of Order XXI provides: "89.  Application to set aside sale on  deposit.--(1)  Where immovable  property has been sold in execution of a  decree, any person claiming an interest in the property sold at  the time  of the sale or at the time of making the  application, or  acting for or in the interest of such person, may  apply to have the sale set aside on his depositing in Court,-- (a)  for payment to the purchaser, a sum equal to  five  per cent of the purchase-money, and (b)  for payment to the decree-holder, the amount  specified in  the  proclamation of sale as that for  the  recovery  of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder, Rule 92(2) of Order XXI reads: (2)  ...................  where, in the case of an  applica- tion  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 deficient  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].

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   The words shown in bracket in Rule 92(2) were substitut- ed  by  section 72 of the Civil Procedure  Code  (Amendment) Act,  1976  with  effect from 1.2.1977. The  object  of  the amendment  was to afford an opportunity to the applicant  to make good any deficiency in the amount deposited under  Rule 89  when  the deficiency occurred by reason of  clerical  or arithmetical  mistake  on his part. That  amendment  has  no relevance  to  the point in issue as regards the  period  of limitation except to emphasise that sub-rule (2) of Rule  92 had  received the special attention of Parliament  in  1976. Parliament  addressed itself particularly to  the  sub-rule, and yet did not, apart from the special 486 contingency  provided for by the amendment, think it  neces- sary  to extend the period generally prescribed  under  Rule 92(2) to make the deposit which is a condition precedent  to an application to set aside a sale.     Rule  89 postulates an application on deposit.  It  says "may  apply to have the sale set aside on his depositing  in Court". These words show that deposit is a condition  prece- dent  to the making of an application to set aside  a  sale. That  condition  must be satisfied within  the  period  pre- scribed by sub-rule (2) of Rule 92, which undoubtedly is  30 days. Parliament refused to alter that provision even when a part of the sub-rule was substituted.     No  doubt on this aspect would probably have arisen  had it not been for the longer period prescribed by Article  127 of the Limitation Act, 1963 (as substituted by the  Amending Act  104  of 1976 with effect from 1.2.1977) for  making  an application under Rule 89. That Article reads: ----------------------------------------------------------- Description          Period of     Time from which of suit              limitation     period begins to run ----------------------------------------------------------- 127. To set aside        Sixty       The date of a sale in execution      days        the sale of a decree includ- ing any such applica- tion by a judgment- debtor."     Prior  to the Amending Act 104 of 1976 the  period  pre- scribed  by  Article  127 was 30 days. As a  result  of  the amendment,  a  period of 60 days is provided for  making  an application to set aside a sale. It is important to remember that Article 127 appears in Part I of Third Division of  the Schedule  to the Limitation Act, 1963,  dealing  exclusively with  applications. Article 127 thus relates solely  to  the making of an application and not to a deposit. This  Article governs applications made under Rules 90 and 91 as well, but we are not concerned with them.     It  is true that prior to the Amending Act 104 of  1976, the  period prescribed for the making of an application  was identical to that for the 487 making  of  a  deposit. But as a result  of  the  amendment, different  periods are now prescribed for the making of  the deposit  and  the application. That it was  the  legislative intent to provide different periods of limitation for  these two  matters  is, from the language used in the  two  enact- ments,  clear and explicit. The reason why  the  legislature provided for different periods for the two matters which are the  necessary steps--one following the other--to  be  taken for setting aside the sale of an immovable property sold  in execution of a decree is not for the Court to question. This Court  would not assume that the legislature made a  mistake

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in this respect or made an omission in accomplishing what it had set out to achieve.     There is no inconsistency between the two sets of provi- sions  prescribing  different periods  of  limitation.  Such inconsistency  can arise only if obedience of one  provision will  result in disobedience of the other. While Rule  92(2) requires  a deposit to be made within 30 days from the  date of  sale, Article 127 requires an  application  contemplated under  Rule  89 to be made within 60 days from the  date  of sale.  As stated earlier, the deposit must necessarily  pre- cede the application for no application under Rule 89 can be made  except  on depositing the amount in Court. We  see  no inconsistency in these two sets of provisions.     The  words  of the statutes being  clear,  explicit  and unambiguous, there is no scope to have recourse to  external aid for their construction. Nevertheless in deference to the arguments of the respondents’ counsel, we would refer to the Statement of Objects and Reasons in respect of clause 102 of the  Bill  introduced in the Lok Sabha on  8th  April,  1974 [Published in the Gazette of India (Extraordinary) Part  II, Section  2,  dated April 8, 1974] amending Article  127.  It states: "Clause  102  (Amendment of the Schedule to  the  Limitation Act, 1953)--An application to set aside a sale in  execution of  a  decree on deposit under Rule 89 of Order XXI  is  re- quired  to be made within thirty days from the date  of  the sale.  Experience  shows that this period is too  short  and often  causes hardship because the judgment-debtors  usually fail  to arrange for moneys within that time. Banks  usually take  more than thirty days to sanction loans and  advances. In  the  circumstances,  entry 127 of the  Schedule  to  the Limitation  Act is being amended to increase the  period  of limitation to sixty days in respect of an application to set aside a sale in execution of a decree. This increase in 488 the  period  of  limitation will not  affect  the  purchaser because  five per cent of the purchase money is required  to be  paid  to him. The advantage of the increased  period  of limitation  will also be available to an  application  under Rule  90  or  Rule 91 of Order XXI to set aside  a  sale  in execution of a decree. In view of the increase in the period of limitation, confirmation of a sale will have to await the expiry of the increased period of limitation." (emphasis supplied)     The  legislative intent, as seen from the  above  state- ment, was indeed to extend the period prescribed for  making an  application and not for any other purpose. That  is  the reason why Article 127 was amended enlarging the period  for making  an application from 30 days to 60 days. That  period has  no bearing on the time allowed for making a deposit  in respect of which the period is prescribed, not under Article 127, but under Rule 92(2) of Order XXI, and this period  has always  been, and remains to be, 30 days. We see  no  repug- nance or inconsistency or lack of clarity in these two  sets of provisions.     Appearing for the appellant (the auction purchaser), Mr. Parasaran  submits that the High Court was not justified  in attempting  to correct or supply, what it thought to  be,  a defect  or an omission in the statute. He  rightly  contends that even if there was an omission, it was not for the Court to rectify it.     The Court must indeed proceed on the assumption that the legislature  did not make a mistake and that it intended  to say  what  it said: See Nalinakhya Bysack  v.  Shyam  Sunder Haldar  & Ors., [1953] SCR 533 at 545. Assuming there  is  a

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defect or an omission in the words used by the  legislature, the Court would not go to its aid to correct or make up  the deficiency. The Court cannot add words to a statute or  read words  into  it  which are not there,  especially  when  the literal  reading produces an intelligible result.  "No  case can be found to authorise any court to alter a word so as to produce a casus omissus": Per Lord Halsbury, Mersey Docks v. Henderson. [1888] 13 App. Cas. 595, 602. "We cannot aid  the legislature’s  defective phrasing of an Act, we  cannot  add and  mend, and, by construction, make up deficiencies  which are left there": Crawford v. Spooner, [1846] 6 Moore P.C. 1, 8, 9. Where the language of the statute leads to manifest  contra- diction 489 Of the apparent purpose of the enactment, the Court can,  of course, adopt a construction which will carry out the  obvi- ous intention of the legislature. In doing so "a judge  must not alter the material of which the Act is woven, but he can and should iron out the creases.": Per Denning, L.J., as  he then was, Seaford Court Estates v. Asher, All E.R. [1949]  2 155 at 164. See the observation of Sarkar, J. in M.  Pentiah &  Ors. v. Muddala Veeramallapa & Ors., [1961] 2 S.C.R.  295 at 314.     In  the construction of the relevant provisions, we  see no contradiction or ambiguity or defect or omission. We  see no merit in the argument that Article 127 must override Rule 92(2)  of Order XXI in respect of limitation. We  view  both the  provisions as prescriptive of time for  different  pur- poses,  and of equal efficacy and particularity.  The  maxim generalia specialibus non derogant has no relevance to their construction. Nor does the principal in Heydon’s case [1584] 3 Co Rep 7a: 76 ER 637 offer any help on the point in issue. The mischief which the legislature had set out to remedy  by amendment  of Article is what is stated in the  objects  and reasons clause. That object was accomplished by  prescribing a  longer  period for filing an application to set  aside  a sale  in  execution of a decree. Further  more,  as  already seen, by amendment of Rule 92(2) of Order XXI an opportunity was accorded to the depositor to make good the deficiency in the  deposit  made by him due to  arithmetical  or  clerical mistake on his part. In no other respect did the legislature evince  an  intention to extend the  period  prescribed  for making the deposit. It would perhaps have been better,  more logical,  reasonable and practical, as stated by the  Kerala High Court in Dakshayini & Ors. v. Madhavan, AIR 1982 Kerala 126,  to enlarge the period for making the deposit so as  to make it identical with that prescribed for making the appli- cation,  and such extended period would have  better  served the object of the amendment, namely, ameliorating the plight of  the  judgment-debtor, but such are  matters  exclusively within the domain of legislation by Parliament and the Court cannot  presume  deficiency  and supply  the  omission.  The legislature did not do more than what it did. It has, in our view,  accomplished what it had set out to achieve. No  more no less.     In the circumstances, we hold that the correct construc- tion of Rule 92(2) of Order XXI of the Civil Procedure Code, 1908 leads to the irresistible conclusion that the time  for making  a  deposit in terms of Rule 89 of Order  XXI  is  30 days, and Article 127 of the Limitation Act, 1963  prescrib- ing  the period for making an application under Rule 89  has no relevance to the prescribed time for making the deposit. 490 Neither  provision has any effect on the other as  to  time.

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All decisions     the contrary on the point, we hold, are incorrect.  With the  greatest  respect, we disagree with the  contrary  view expressed in Basavantappa v. Gangadhar Narayan Dharwadkar  & Anr., [1986] 4 SCC 273.     On  the question of limitation the judgment of the  High Court  is set aside, and the appeal is allowed to  that  ex- tent. We make no order as to costs. R.N.J.                                                Appeal allowed. 491