Sambhaji Narsayya Adval v. Mokate Trust & Ors.

This Appeal arises passed Execution proceedings. The Appellant Judgment Debtors. The Appellant application 1908 Order XXI Rule 90 Code Civil Procedure, (hereinafter referred "the Code"), setting auction property execution proceedings. The application rejected the impugned order on merits as well as on the ground that it is barred by limitation.

The learned Counsel appearing appellants seriously dispute Application within limitation prescribed Article 127 Limitation Act,

1963. He, however, submitted carelessness Executing Court following procedure prescribed Code valuation property carelessly : 2 : made. Relying judgment learned Single Judge Calcutta High Court reported AIR 1977 Calcutta 235 (Jyotish Chandra Rakhit

v/s.Smt. Parbati Bala) submitted carelessness Executing Court, question limitation arises. He submitted valuation property proclamation i.e. 12th April 2004 valuation arbitrarily Rs.5 though He valuation property Rs.20 lakhs. submitted recovery a Rs.2,43,000/- necessary entire land to public auction and therefore, there is a violation of Rule 64 of Order XXI of the said Code.

I considered submissions. In Application Order XXI Rule 90 Code Appellant specific contention raised effect entire sale. I perusal impugned a contention raised application heard. It Appellant contention raised argument considered learned Judge. Therefore, permissible Appellant contention Appeal arising execution proceedings. Only specific ground agitated in the Application is : 3 : undervaluation of the land.

As second contention concerned, learned Judge Appellant produced record acceptable evidence wherein question mentioned Rs.20 lakhs. This a Appellant a evidence willing relevant Rs.20 amount Rs.5,35,000/- property dispute. The impugned notice Order XXI Rule 66 June served Appellant 19th

2003. For procure a a period 1-1/2 Appellant offered Rs.5.35.000/-. It pertinent Rs.5,35,000/- highest offered. The purchaser deposited 25% amount 14th June 2004 balance amount deposited 25th June

2004. In position there is no merit in the contention advanced by the learned Counsel for the Appellant.

As Judgment learned Single Judge Calcutta High relied Appellant concerned, I respectfully disagree learned Single Judge. It pertinent Section 5 Limitation Act, 1963 : 4 : applicable Applications Order XXI Code. In assuming Court careless, limitation application vigour. In express language section 5 Act 1963, Court powerless condone delay. Though Application admittedly barred limitation, learned Judge examined merits matter. There is no merit in the Appeal. The Appeal is dismissed with no order as to costs.

At learned Counsel Appellant ad-interim passed Court extended a period 8 weeks. The execution proceedings pending

2002. The Purchaser deposited entire June

2004. Hence is made out for extension of ad-interim order. The prayer is rejected. C.C. expedited. Judge.