KARUPPAMA GOUNDER Vs. VELAPPA NAICKER AND ANR.

JUDGEMENT

(1.) This revision is directed against the order passed by the District Munsif, Palani, in E.A. 198 of 1987 in E.P. 199 of 1986 in O.S. 385 of 1983, dismissing the application on the ground that notice of hearing was not given and security was not furnished. Learned counsel for the revision petitioner mainly submitted that in view of the decision of this Court rendered by Balasubrahmanyan, J. in Kannan Vs. Haji Abdul Rawood Sahib, 1982 T.L.N.J. 502 , in the law as at present stands in Order 21 Rule 90, C.P.C., there is no provision at all for insisting upon a security being furnished by the judgment debtor as a pre-condition for his seeking to set aside the sale on the ground of material irregularity. According to him; the order of the lower Court is erroneous and is liable to be set aside. On the other hand, the learned counsel for the decree holder drew my attention to the decision in Shanmughan Vs. Lakshmipiti Naidu, 100 L.W. 99 where S.A. Kader, J. considered the decision rendered by Balasubrahmanyan, J. (above quoted) and, disagreeing with the said decision, held that in view of the proviso to that section that was introduced by Madras Amendment, furnishing of security is necessary. On going through the said decision, I find that the learned Judge (S.A. Kader, J.) has elaborately discussed the decision in Kanan Vs. Haji Abdul Rawood (supra) and held that Balasubrahmanian, J. has proceeded to hold on the assumption that the said proviso was already in the Central Act and subsequently it was omitted. But, it was not so. On the other hand, so far Order 21, Rule 90 of the Principal Act has not been touched by the Amending Act 104 of 1976 and the said rule stands as it was before the Amending Act. Hence S.A. Kader, J. came to the conclusion, after considering the decision in Ganpat Giri Vs. Second Additional Deputy Judge and another, 1986(1) SCC 61 , regarding the effect of Sec. 97 (1) of the Amending Act 104 of 1976, and the earlier. Full Bench decision in Gunturu Sella Ramanjaneyalu Vs. Vishnubhotla Ramayya, 1 LIR 914 Mad. 203 that the Madras proviso to Order 21, Rule 90 is not inconsistent with Rule 90 of Order 21, of the Principal Act, and is not hit by Sec. 97 (l)of the Amending Act 104 of 1976. I entirely agree with the view of S.A. Kader, J. The learned counsel for the revision petitioner submitted that in view of the conflicting decisions, the matter has to be referred to a Full Bench. I do not think that it is necessary as the question arises in this case is whether the proviso to Order 21, Rule 90 is inconsistent with the Amending Act. But, as observed by S.A. Kader, J. Balasubramanyan, J. has rendered the judgment on the assumption that the Madras Proviso r is inconsistent with the Amending Act, which is not correct, since the Principal Act has not been touched so far as Order 21 Rule 90 is concerned. Hence, the question of referring the matter to a Full Bench does not arise. Hence, I am of the view that furnishing of security is. absolutely necessary under Order 21, Rule 90 for setting aside the sale.

(2.) Next, it was contended by the learned counsel for the revision petitioner that though the matter was posted in the lower Court on 17-6-1987 for notice of hearing, the trial court without giving opportunity to the revision petitioner for service of notice and putting forth his contentions about furnishing of security erred in dismissing the petition, and that since an opportunity was not given to the revision petitioner, the order passed by the Court below is to be set aside on that ground. I find some force in the said contention. The revision petitioner ought to have given an opportunity for effecting service of notice on the other side and of being heard of his furnishing security as required under the proviso, before ever the petition is dismissed.

(3.) In the result, the revision is allowed, the order passed by the Court below is set aside, and the matter is remitted back to the Court below which is directed to restore the petition, give opportunity to the revision petitioner to give notice of hearing to the other &' side and then to offer his explanation and to : show cause about the furnishing of security and then dispose of the same within four weeks from the date of receipt of the order since the suit relates to the year 1983, positively. In the circumstances, there will be no order as to costs. Revision allowed.