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Issues: Whether an application under Order XXI Rule 89 of the Code of Civil Procedure, 1908 to set aside a court sale must be accompanied by the requisite deposit within the same period of limitation prescribed for filing the application under Article 127 of the Limitation Act, 1963, and whether the High Court was justified in remitting the matter for fresh consideration despite absence of such deposit.
Analysis: Order XXI Rule 89 of the Code of Civil Procedure, 1908 does not itself prescribe a separate time limit for making the application or the deposit, but Article 127 of the Limitation Act, 1963 prescribes 60 days for such an application. The settled legal position, as applied by the Court, is that where no separate period is provided for deposit, the time for deposit and the time for filing the application are the same. The requisite deposit is a condition precedent and a sine qua non for maintaining an application to set aside a sale, and if the amount is not deposited within the prescribed period, the application cannot succeed.
Conclusion: The High Court erred in remitting the matter for reconsideration. In the absence of the required deposit within the prescribed time, the application under Order XXI Rule 89 of the Code of Civil Procedure, 1908 was liable to be rejected. This issue is decided in favour of the appellant and against the judgment-debtor.
Final Conclusion: The order of the High Court was set aside, and the appeal was allowed with costs.
Ratio Decidendi: For an application to set aside a court sale under Order XXI Rule 89 of the Code of Civil Procedure, 1908, the statutory deposit must be made within the same limitation period as the application itself, and failure to do so renders the application unsustainable.
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