Limitation to file application under Order 21 Rule 90 of CPC is of 60 days - delay in filing cannot be condoned as Section 5 of Limitation Act is not applicable; SC.
- 12:00Supreme Court of India
Justice Deepak Gupta & Justice L. Nageswara Rao
The SC on March 17, 2020 {AARIFABEN YUNUSBHAI PATEL & ORS. v. MUKUL THAKOREBHAI AMIN & ORS.} held that a bare reading of the 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, in moving the application cannot be condoned under Section 5 of the Act as the said provision for condonation is not applicable.
It was held that 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.
It was further held that 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. It was held that it cannot be said that in present subject matter the writ petition was filed in good faith or by due diligence because on 18.12.2007 the counsel for R3 had made a statement that he would file objections to the execution petition. However, it was held that assuming that these proceedings were filed in good faith, after a statement was made before this court on 21.04.2008, R1 should have immediately filed the application before the executing court. It was held that 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.
It was held that even if the case of R1 is accepted, at best, the period from 26.12.2007 to 21.04.2008 can be excluded. It was held that if the SC excludes in present case that period then it is 7 days in December, 9 days in April, 31 days in May and 19 days in June. Thus, it was held that by giving benefit of all days of passing of the orders then also R1 & R3, would be barred by limitation for filing the application under Order XXI Rule 90 of the CPC by 6 days. It was held that since there is no power to condone such delay, the petitions had to be dismissed as being time barred. Accordingly, the appeals were allowed on this short ground by the SC.
In the present case, when the matter went back to the Executing Court which by a very detailed order rejected the application of R1 filed under Order XXI Rule 90 of the CPC. Thereafter, R1 challenged the order of the executing court by filing a petition in the High Court which was allowed vide impugned order. The objections to the execution petition filed by R1 were accepted and sale in favour of the appellants was set aside. The High Court went into the merits of the petition but did not decide the issue of limitation. Though the High Court noticed that the appellants had raised the plea of limitation, it did not decide the same - and for the reasons aforesaid the HC judgment was set aside and the application Order XXI Rule 90 of the CPC was dismissed by the SC the same being barred by limitation.