Execution sale challenge time-barred: SC says Order 21 Rule 90 has strict 60-day limit; Section 5 inapplicable, Section 14 applied narrowly
Case name: Aarifaben Yunusbhai Patel & Ors. v. Mukul Thakorebhai Amin & Ors.
Date of Order: 17 March 2020
Citation: Civil Appeal Nos. 1643–1644 of 2020 (with C.A. No. 1647 of 2020; Contempt Petition (C) No. 63 of 2020)
Bench: L. Nageswara Rao, J.; Deepak Gupta, J.
Held: An application to set aside an auction sale under Order XXI Rule 90 CPC must be filed within 60 days as per Article 127 of the Limitation Act, 1963; Section 5 (condonation of delay) does not apply to Order XXI proceedings, and Section 14 (exclusion of time) can be invoked only for the period during which the applicant was prosecuting, with due diligence and in good faith, another civil proceeding that the court could not entertain for defect of jurisdiction or a like cause. On the facts, even granting exclusion for the writ petition period, the judgment-debtors’ Rule 90 objections were still six days late; with no power to condone, the objections were barred, and the High Court erred in setting aside the sale without deciding limitation as earlier directed.
Summary: A cooperative bank obtained a money decree (14.09.2004) against a partnership firm and its partner. In execution, the Civil Judge, Vadodara appointed a receiver and auctioned attached assets twelve flats and two penthouses after a public notice issued on 21.11.2007; the appellants bid ₹78.25 lakh on 26.11.2007, deposited 25% on the spot, and the sale certificate issued on 29.02.2008. The partner (judgment-debtor) meanwhile filed a writ petition (26.12.2007) attacking the sale, and also sought stays before the executing court; later, an SLP was withdrawn on 21.04.2008. Only on 20.06.2008 did the judgment-debtor file a Rule 90 application alleging want of notice and low price. Earlier, the Supreme Court (23.03.2009) had directed the executing court to decide both limitation and merits, including the applicability of Sections 5 and 14. The executing court, by a detailed order, rejected the objections; the High Court, however, set aside the sale solely for lack of notice, declining to rule on limitation. Restoring the executing court’s order, the Supreme Court held that Section 5 is expressly excluded for Order XXI applications; hence no condonation is possible. For Section 14, only the period 26.12.2007–21.04.2008 (writ/SLP phase) could, at best, be excluded; continuing with the writ thereafter was neither in good faith nor with due diligence, particularly when counsel before the executing court had already stated on 18.12.2007 that objections would be filed. Even after allowing the maximum arguable exclusion, the Rule 90 filing on 20.06.2008 overshot the 60-day ceiling by six days, rendering the objections time-barred. Given this dispositive bar, there was no occasion to unsettle the auction on merits; the High Court’s omission to decide limitation contravened the earlier direction and the statutory scheme.
Decision: Appeals allowed. The High Court’s judgment setting aside the auction sale is quashed; the executing court’s order rejecting the Order XXI Rule 90 objections is restored. The connected contempt petition and pending applications stand disposed of.