Manoharan, J.
1. One of these revisions has been referred to the Division Bench to determine the main point whether an application under Order 21, Rule 89, C.P.C. (for short 'the Code') is maintainable when the required deposit was after 30 days but was within 60 days of the sale. Since the same question is involved in the other revision also, we heard both the revisions together. Article 127 of the Limitation Act, 1963 (as it stood originally) provided 30 days' time for making the application to set aside sale in execution of decree. It was subsequently amended as 60 days. A Division Bench of this Court in Dakshayini v. Madhavan, 1981 Ker LT 861 : (AIR 1982 Ker 126), took the view that such an application is not maintainable. The Division Bench held that deposit envisaged in Rule 89 being a condition precedent for setting aside the sale, the same has to be made within 30 days as provided in Order 21, Rule 92(2) of the Code. Subsequently Rule 92(2) was amended by the High Court and the period of deposit is enlarged to 60 days. It is contended that the amendment has no retrospective effect and hence the deposit made after 30 days in this case, though within 60 days, will not help the applicant,
2. The facts in the first case relevant for the revisions are the following : In a final decree for partition, a certain plot of land was allotted to the share of the revision petitioner and his brother jointly. The decree-holder was allowed to realise a certain amount from one of them. The decree-holder attached the right of the judgment-debtor in the aforesaid plot and brought it for sale, and the decree-holder himself bid it on 25-11-1981. The revision petitioner filed an application on 18-1-1982 for setting aside the sale by making the deposit after 30 days of the sale. The execution Court allowed the application. But the District Court, in appeal, dismissed the application by allowing the appeal. Thus the petitioner has filed C.R.P. 3506/1983.
3. The brief facts relating to C.R.P. 171 of 1982 are : in execution of a money decree a property was sold in court-auction. The revision petitioner filed an application under Order 21, Rule 89 for setting aside the sale claiming right over a portion of the property sold. There also the deposit was made beyond 30 days but within 60 days of the sale. Execution Court dismissed the application; and the District Court confirmed it in appeal.
4. In both these revision petitions the maintainability of the applications to set aside the sale is questioned on account of the failure to deposit the same amount and commission within 30 days of the sale and also on the ground of want of competency of the respective petitioners to maintain the petitions. Learned Counsel for the respondents in C.R.P. 171 of 1982 raised yet another ground against maintainability; according to him, inasmuch as the predecessor of the petitioner had filed another application for setting aside the sale under Order 21, Rule 90 of the Code, the application filed by the petitioner for setting aside the sale under Order 21, Rule 89 of the Code is not maintainable.
5. It is pointed out that, though by Act 104 of 1976 amendments were made not only to Article 127 of the Limitation Act; but also in the very Sub-rule (2) of Rule 92 of Order 21, that part of the said sub-rule which enjoins deposit to be made within 30 days was not amended. In Dakshanini's case, 1981 Ker LT 861 : (AIR 1982 Ker 126), referred to earlier this Court observed thus : 'but though a corresponding treatment was required to Order 21, Rule 92(2) that was evidently lost sight of unless it be that we assume that the legislature wanted two different periods a period of one month for deposit and two months for application, which of course does not appear to be, on the face of it, reasonable....'.
6. In Thangammal v. Dhanalakshmi, AIR 1981 Mad 254, a learned single Judge of the Madras High Court held : 'On a proper interpretation of Rule 92(2) it is not possible to say that it provides for a period of limitation for making the deposit as has been held by the Court below'. It is also held that Article 127 of the Limitation Act which prescribes a period of 60 days for making the application under Order 21, Rule 89 being a special later law will prevail over Order 21, Rule 92(2) which is general earlier law. The same question came up for consideration before the Supreme Court in Basavantappa v. G. N. Dharwadkar, AIR 1987 SC 53. In that case also the Court sale was sought to be set aside under Order 21, Rule 89 but the deposit was made only within 60 days. The Munisff overruled the objection of the decree-holder as to the maintainability of the petition on the ground that no deposit was made within the period of 30 days prescribed under Order 21, Rule 92(2) of the Code. A learned single Judge of the Karnataka High Court relying on the decision in Thangammal's case, AIR 1981 Mad 254, declined to interfere. It will be profitable to read the last portion of the judgment of the Supreme Court; it reads (at pp. 54 and 55) :
'........ The Principal Munsiff, Dharwar by his order dated October 4, 1985 overruled the objection raised by the petitioner. A learned single Judge (Kulkarni, J.) by his judgment dated March 26, 1986 (reported in (1986) 60 Com Cas 44 (Kant)) declined to interfere with the order of the learned Munsiff setting aside the sale. The learned Judge relying upon the decision of the Madras High Court in Thangammal v. K. Dhanalakshmi, AIR 1981 Mad 254, held that the provisions of Order XXI, Rules 89 and 92(2) of the Code and that of Article 127 of the Limitation Act should receive a harmonious construction. In that view, the learned Judge held that the judgment-debtor No. I having deposited the decretal amount together with 5% of the purchase money and having made the application under Order XXI, Rule 89 of the Code within sixty days of the sale i.e. within the period as provided by Article 127 of the Limitation Act, the sale was liable to be set aside. The learned single Judge has brought about the inconsistency between Sub-rule (2) of Rule 92 of Order XXI of the Code and Article 127 of the Limitation Act and suggested that steps should, be taken to remove this inconsistency. We fully endorse the view expressed by the learned single Judge.
7. Thus the view expressed by the single Judge that the deposit having been made within the period prescribed under Article 127 of the Limitation Act the sale is liable to be set aside was endorsed by the Supreme Court. In view of the decision in Basavantappa's case (AIR 1987 SC 53), it cannot be said that 1981 Ker LT 861 : (AIR 1982 Ker 126), lays down the correct law.
8. Even otherwise with the amendment in Order 21, Rule 92(2) by substituting 60 days for 30 days the deposit must be held to be within time. It was contended by learned Counsel for the respondents that, inasmuch as the said amendment was made by the notification dated 8th October, 1987 the same could take effect only from that date; in these cases the applications under Order 21 Rule 89 having been filed before the said date, the petitioners are not entitled to rely on the aforesaid amendment. Eyen without the said amendment to Order 21 Rule 92(2), as we found earlier; the deposit need be made only within 60 days. The amendment dated 8th October, 1987 is only declaratory and, therefore, the same would take effect retrospectively. In the decision reported in Central Bank of India v. Their Workmen, AIR 1960 SC 12, it is held (at p. 27) :
'For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the meaning or effect of any statute. Such Acts are ususally held to be retrospective ....................'.
As has already been noted the function of the, amendment in the context of the decision of the Supreme Court in Basavantappa's case, AIR 1987 SC 53, can only be to remove the ambiguity or inconsistency between Article 127 of the Limitation Act and Order 21, Rule 92(2) of the Code. The effect and character of this amendment cannot be considered divorced from the context and circumstances under which the said amendment was made. When the aforesaid factors are taken into consideration the function of the said amendment can only be treated as declaratory. A similar question was considered by the Supreme Court in the decision reported in Channan Singh v. Jai Kaur, AIR 1970 SC 349. A brief reference to the fact of that case is useful here. One Santa Singh was the owner of certain land. He left his widow, Sobhi and also a daughter from his other wife. The widow sold the property to a stranger. The aforesaid daughter filed a suit for possession by preemption of the land which was sold by the widow. The trial Court decreed the suit. An appeal to the District Court was not successful. But a single Judge of the High Court allowed the appeal on the ground that the daughter not being the daughter of the vendor had no right of pre-emption under Section 15(2) of the Punjab Pre-emption Act, 1913 as amended by the Punjab Pre-emption Amendment Act, 1960. She filed an appeal under Clause 10 of the Letters Patent of the High Court. She relied on the amendment made by the Pre-emption Act, 1964. By such amendment the son or daughter of the husband of the female was also entitled to right of preemption. The Division Bench reversed the decision of the single Bench and decreed the suit. Against that decision appeal was preferred before the Supreme Court. In considering the right of the appellant therein, the Supreme Court said : 'It appears to us that the Amendment Act of 1964 was merely of a clarificatory or declaratory nature. Even in the absence of the words which were inserted by the Amendment Act of 1964 in Section 15(2)(b) the only possible interpretation and meaning of the words 'in the son or daughter of such female' could have reference to and cover the son or daughter of the husband of the female'. Their Lordships also adverted to the scheme of the Act. The judgment concludes by stating : 'The result, therefore, is that the respondent was entitled to exercise her right of pre-emption under paragraph first of Clause (b) of Sub-section (2) of Section 15 even before amendment made in 1964. At any rate, whatever doubts existed they were removed by the Amendment Act of 1964 which must be given retrospective operation'.
9. The amendment to Order 21, Rule 92(2) can only be considered as declaratory and hence the same can be given retrospective operation. The contention raised against the maintainability of the petition for setting aside the sale on the ground that the deposit was not made within 30 days, thus is not sustainable.
10. As regards the maintainability of the application for setting aside the sale, learned Counsel for the respondent in C.R.P. 171 of 1982 contended that, since Kadir, the father of the applicant, had filed another application under Order 21, Rule 90 of the Code the application of this petitioner is not maintainable. In the present application it is stated that the petitioner obtained 50 cents as per a gift deed. What is enjoined under Order 21, Rule 89(2) is that the same person cannot simultaneously maintain applications under Order 21, Rule 89 as well as Rule 90 of the Code. The nature of the interest or his claim has to be proved for coming to a conclusion on this point. No document is proved. It is seen that the Court has confirmed the sale on expiry of thirty days of the sale. Evidently the said confirmation was before filing the petition under Rule 89. As per Rule 92(1) of the Code sale can be confirmed only when no application is made under Rules 89, 90 or Rule 91, or when such application though made was disallowed. The application need be filed within the time prescribed under Article 127 of the Limitation Act; the period prescribed thereunder being 60 days, confirmation made within that period cannot be supported. Such confirmation made within the 60 days prescribed in Article 127 of the Limitation Act cannot render the Court functus officio as in such circumstance the Court has no power to confirm sale; the confirmation is invalid. The Madras High Court in the decision in L. Rajan v. Muthusamy, AIR 1981 Mad 285, also has taken the same view. With respect we agree with the said view and hold that the confirmation cannot stand in the way.
11. It was then pointed out that, no evidence was adduced to show that, the petitioner has got interest in the property which was sold. The counsel for the petitioner submitted that, he has produced documents before the trial Court. In the circumstances, we consider that it is only appropriate that the petitioner in C.R.P. No. 171 of 1982 is given a chance to prove his case.
12. As regards the competency of the revision petitioner to maintain E.A. 24 of 1982 for setting aside the sale which is the subject-matter in C.R.P. No. 3506 of 1983, it is contended that, herself will not fall under Sub-rule (1) of Rule 89 of Order 21 of the Code. The petitioner is the sister of the judgment-debtor. In considering the competency of the petitioner to maintain an application under Order 21, Rule 89 of the Code the amendment made to the aforesaid provision by Act 104 of 1976 is relevant and important. Under the unamended Rule 89(1) 'any person either owning such property or holding any interet therein by virtue of a title acquired before such sale' only could maintain an application under the said rule for setting aside the sale. The said provision is now amended by Act 104 of 1976 Which enables 'any person claiming any interest in the property sold at the time of sale or at the time of making the application or acting for or on behalf of the interest of such person' to file an application under the said provision for setting aside sale. A plain reading of the unamended Code along with the amended Code itself will demonstrate that, after the amendment a person need not hold interest to qualify him for filing an application under the said rule. On the other hand, he need have claim of interest in the property as mentioned in the Rule. The status of the petitioner has to be examined against the back-drop of the aforesaid amendment. The petitioner is the sister of the judgment-debtor. They are co-tenants. According to the petitioner, her brother is not heard of over eight years. She would claim that, herself is in exclusive possession of the property. The sale was with respect to the half right of the brother. As indicated, herself being a co-owner in possession of the property on the strength of her status as co-owner itself she is entitled to maintain this petition because she is one who has a claim of interest in the property sold. Tenants-in-common have unity of possession, each one is entitled to be in possession and enjoyment of the whole property along with the others. Each co-tenant is interested in each part of the property. One of us (Thomas, J.) has in the decision in Krishnan Nair v. Lakshmi Amma, 1986 Ker LT 558, relying on the decision reported in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, held that 'until the integrity of the property is so disrupted, a co-owner of a property is an owner of that property in the same way as an absolute owner of another property is in respect of the latter'. Therefore, the petitioner is entitled to maintain the application for setting aside the sale.
In the result, the judgment under challenge in C.R.P. 171 of 1982-1 is set aside and remitted to the trial Court for disposal in accordance with law. Both parties, will be given opportunity to establish their respective claims. The judgment under challenge in C.R.P. 3506/1983-H is set aside, E.A. 24 of 1982 in E.P. 7 of 1981 in O.S. 717 of 1968 of the Manjeri Munsiffs Court is allowed and the sale dated 25-11-1981 is set aside. There will be no order as to costs.
CM.P. No. 33362/83 in C.R.P. No. 3506/ 83H dismissed.