Summary
The Supreme Court restored rejection of objections to execution sales as time-barred. Section 5 of the Limitation Act excludes applications under Order XXI, so it could not condone delay in a Rule 90 challenge. Even assuming good-faith prosecution of the earlier remedy, Section 14 exclusion extended at most to withdrawal of the Supreme Court proceeding; later pursuit in the High Court lacked due diligence. The objections remained six days late without deciding alleged auction fraud.
Issues
- Whether delay in the Rule 90 sale challenge could be condoned under Section 5.
- How much time could be excluded under Section 14 for pursuit of other proceedings.
- Whether the High Court could bypass limitation to invalidate the sales on merits.
Provisions considered
- Section 5, Limitation Act, 1963Expressly excludes applications under Order XXI; delay in these Rule 90 objections could not be condoned under it. (¶¶ 9, 13)
- Section 14, Limitation Act, 1963Only time spent with due diligence and good faith pursuing the alternative remedy could be excluded. Continuing thereafter did not qualify here. (¶¶ 10, 11, 12, 13)
- Order XXI, Rule 90, Code of Civil Procedure, 1908The sale objections remained subject to limitation despite the allegations of irregularity or fraud. (¶¶ 7, 8, 9, 13)
Held
- Limitation had to be addressed before the auction objections on merits. The High Court wrongly ignored that issue despite the Supreme Court’s earlier express direction for both limitation and merits findings. (¶¶ 6, 7)
- The sixty-day limitation applied to the application to set aside the execution sale, and Section 5 afforded no power to condone delay because of its express Order XXI exclusion. (¶ 9)
- Even assuming the alternative proceedings initially met the good-faith requirement, the objectors should have applied to the executing court immediately after withdrawing their Supreme Court proceeding on 21 April 2008. Their subsequent continuation before the High Court was not diligent or in good faith for Section 14 purposes. (¶¶ 11, 12)
- At most the period from 26 December 2007 to 21 April 2008 could be excluded. Even on that favourable calculation the objections were six days late and had to be dismissed; alleged defects in the sales did not require decision. (¶¶ 7, 13, 14)
Result
Appeals allowed; High Court judgment set aside and executing court order dated 23 February 2010 upheld. Contempt petition and pending applications disposed of.