SAMBAVATHI Vs. BHAGAVAN RAO

JUDGEMENT

(1.) THE judgment-debtor third defendant in O.S.No.60 of 1985, filed unnumbered E.A. of 1990 in E.P.No.30 of 1986 to set aside the sale under O.21, Rule 90, C.P.C. she also filed E.A.No.7 of 1988 to dispense with the calling of security demanded of from her and to permit her to continue the main execution petition. That application was contested by the respondents. THE lower court following the judgment reported in Karuppana Gounder v. Velappa Naicker, (1988)1 L.W. 18, dismissed the said application in E.A.No.7 of 1988. Aggrieved by the same, the judgment debtor/third defendant has filed C.R.P.No.2016 of 1990. THE unnumbered E.P. of 1990 filed to set aside the sale, stated supra, was also dismissed, against which C.M.A.No.583 of 1992 has been preferred. Consequently E.P.No.39 of 1986 filed for sale of the property was ordered. Aggrieved by the order passed therein, C.R.P.No.3064 of 1990 has been preferred.

(2.) THE learned counsel appearing for the petitioner has submitted that the lower court while dismissing the application ought to have given an opportunity to furnish the security as contemplated under Proviso to 0.21, Rule 90 of the Code of Civil Procedure. THE said proviso reads as follows:'.90(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a ratable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.(3) No application to set aside sale under this rule shall be entertained upon any ground which the applicant could have taken on for before the date on which the proclamation of sale was drawn up'.