MANU/SC/0172/1990Equivalent Citation: AIR1990SC933, (1990)2SCC378,

[1990]1SCR483
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1308 of 1990
Decided On: 20.02.1990
Appellants:P.K. Unni
Vs.
Respondent:Nirmala Industries and Ors.
Hon'ble Judges/Coram:
K.N. Singh, T.K. Thommen and N.M. Kasliwal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: P.P. Rao and Jitender Sharma, Advs
For Respondents/Defendant: M.R. Narayanaswamy and A.T.M. Sampath, Advs.
Case Note:
Limitation - Delay - Article 127 of Limitation Act, 1963 and Order 21 Rules 89
and 92(2) of Code of Civil Procedure, 1908(CPC) - What is period of limitation
for making deposit to make application under Order 21 Rule 89 of CPC to set
aside sale of immovable property sold in execution of decree ? - Held, correct
construction of Order 21 Rule 92(2) of CPC leads to irresistible conclusion
that time for making deposit in terms of Order 21 Rule 89 of CPC is 30 days -
Article 127 of Act prescribing period for making application under Rule 89 of
CPC has no relevance to prescribed time for making deposit - Neither
provision has any effect on other as to time - Therefore on question of
limitation judgment of High Court set aside and appeal allowed to that extent
ORDER
T.K. Thommen, J.
1. Special leave is granted.
2. 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
limitation 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?
3. The High Court by the impugned judgment held that Article 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 and Ors. v. K. Dhanalakshmi
and Anr. MANU/TN/0268/1981 : AIR1981Mad254 and the decision of this Court in
Basavantappa v. Gangadhar Narayan Dharwadkar and Anr. MANU/SC/0343/1986 :
[1986]3SCR734 . 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.

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4. 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,
...
5. Rule 92(2) of Order XXI reads:
(2) ...where, in the case of an application 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].
...
6. The words shown in bracket in Rule 92(2) were substituted 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
contingency provided for by the amendment, think it necessary 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.
7. Rule89 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
precedent to the making of an application to set aside a sale. That condition must be
satisfied within the period prescribed 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.
8 . 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:

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9. Prior to the Amending Act 104 of 1976 the period prescribed 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.
10. 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 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 enactments,
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
in this respect or made an omission in accomplishing what it had set out to achieve.
11. There is no inconsistency between the two sets of provisions 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 precede 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.
12. 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, Section2, 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 required 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

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 application to set aside a sale in execution of a decree. This increase in 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)
13. The legislative intent, as seen from the above statement, 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 repugnance or inconsistency or lack of clarity in these two sets of provisions.
14. 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.
15. 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 and Ors. MANU/SC/0076/1953 : [1953]4SCR533 . Assuming there is a
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
AC 595 Uz. "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 M.P.C. 1.
16. Where the language of the statute leads to manifest contradiction of the apparent
purpose of the enactment, the Court can of course, adopt a construction which will carry
out the obvious 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 [1949] 2 All E.R.155. See
the observation of Sarkar, J. in M. Pentiah and Ors. v. Muddala Veeramallapa and Ors.
MANU/SC/0263/1960 : [1961]2SCR295 .
17. 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 purposes, and of equal efficacy and particularity. The
maxim generalia specialibus non derogant has no relevance to their construction. Nor
does the principal in Hey don's case [1584] 3 CR 7: 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 127 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

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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 and Ors. v. Madhavan,
MANU/KE/0028/1982 : AIR1982Ker126 , to enlarge the period for making the deposit so
as to make it identical with that prescribed for making the application, 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.
18. In the circumstances, we hold that the correct construction 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 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. All decisions to 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 and Anr. MANU/SC/0343/1986 :
[1986]3SCR734 .
19. On the question of limitation the judgment of the High Court is set aside, and the
appeal is allowed to that extent. We make no order as to costs.

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