SARADAMBAL Vs. A M P ARUNACHALAM

JUDGEMENT

(1.) THE appellant herein who was the judgment debtor in O. S. 5 of 1953, filed an application under Order XXI Rule 90 C. P. C. on 30-9-1963 for setting aside the sale of the property that took place in execution of the decree in the suit and purchased by the respondent herein, and also filed an application for dispensing with the furnishing of security contemplated by the proviso to Order XXI Rule 90 c. P. C. I must mention the fact that the suit itself was based on a mortgage and the respondent herein, who was the decree-holder, purchased the property in auction for a sum of Rs. 2005. The application filed by the appellant for dispensing with the furnishing of security was numbered as E. A. 525 of 1963, the same was dismissed and the appellant herein was directed to furnish security for a sum of Rs. 2000 within one month from the date of the order dated 14-11-1963. The learned Subordinate Judge of chinglcput who disposed of that application, stated that the point for determination before him was whether it was a fit case for dispensing with security to be furnished under Order XXI Rule 90 CPC and then answered the point as follows-

(2.) MR. A. Ramanathan, the learned counsel for the appellant, advanced the following contentions: (1) the order dated 14-11-1963 made in E. A. 525 of 1963 was erroneous on two grounds (a) that the proviso to Order XXI Rule 90 C. P. C. requiring the furnishing of security has no application to a mortgage decree and (b) that even assuming that it has application, the learned Subordinate Judge erred in demanding security on the facts of this case; (2) the order dated 14-111963 made In E. A. 525 of 1963 can be questioned by the appellant in the present appeal which has been preferred against the order dated 10-12-1964 made in E. A. 15 of 1964; and (3) on 16-1-1964 the learned Subordinate Judge had admitted e. A. 15 of 1964 and consequently after the stage of admission he had no jurisdiction to demand security. These contentions of the learned counsel for the appellant are refuted by Mr. R. Rajagopala Aiyar, the learned counsel for the respondent.

(3.) LOGICALLY I shall take the second contention first, because if I come to the conclusion that the appellant is not entitled to challenge the correctness of the order dated 14-11-1963 in the present appeal, it will be unnecessary for me to go into the first question whether that order is correct or not. The argument of the learned counsel in this behalf is that the order dated 14-11-1963 is merely an interlocutory order and it does not determine the rights of the parties; nor does it put an end or terminate the application filed by the appellant for setting aside the sale. According to the learned counsel the dismissal of the application to dispense with the security will have only the consequence of compelling him to furnish security and only if he does not furnish security in terms of the order dated 14-111963, his application for setting aside the sale would become liable to be dismissed. Therefore, the order dated 14-11-1963 is only an interlocutory order which can be challenged in the appeal preferred against the final order dated 1012-1964. For this contention the learned counsel relied on several decisions and the provisions contained in Section 105 read with Section 108 C. P. C. In Maharaja mohashur Singh v. Bengal Govt. 1865-7 Moo Ind App 283, 302 the Privy Council stated-