KUNDAN LAL Vs. JAGAN NATH SHARMA

JUDGEMENT

(1.) This is a judgment-debtor's application in revision against an order dismissing his objections under Rule 90 of Order XXI, C. P. C. The matter come up before a learned single Judge of this Court who was of the opinion that the order of dismissal, based as it was on the proviso to Rule 90 of Order XXI, C. P. C. added by this Court, had been wrongly interpreted by the Civil Judge. The attention of the learned Single Judge was invited to a decision of this Court in Bhawan Ram v. Kunj Behari Lal, 1960 All LJ 578 : (AIR 1962 All 42) in which it was held that the proviso introduced by this Court to Rule 90 of Order XXI bars entertaining an objection altogether if the requirements of the proviso are not complied with by the time up to which the objection can be legally entertained and that the objection cannot thereafter be validly made nor can the security deposit be accepted The learned Single Judge was of the opinion that the view taken by this Court in Bhawan Ram's case 1960 All LJ 578 : (AIR 1982 All 42) was not sound. On his reference the matter was referred to the Division Bench.

(2.) The facts giving rise to this application in revision are as follows. There was a money decree passed against the defendant judgment debtor. In execution of that decree certain property of the judgment-debtor was put to auction sale on the 17th October 1958. On the 30th October 1958 he made an application under Rule 90 of Order XXI, C. P. C. to set aside the sale on ground of certain irregularities committed in the conduct of the sale. Objections to this application were made both by the Official Receiver as well as by the auction purchaser. One of the grounds raised in the objections made by the auction purchaser was that along with the application filed by the judgment-debtor he had not deposited 121/2% of the sum realised by the sale nor furnished security as required by Clause (b) of the proviso to Rule 90 of Order XXI, and that the application was, therefore, liable to be rejected. Thereupon the judgment-debtor made an application on the 12th June 1959 praying that he might be allowed time to give the necessary security. The learned Civil Judge allowed this application on the 26th February 1960 and the judgment-debtor then filed the necessary security within the time allowed, that is, on the 7th March, 1960. When the application came on for disposal the learned Civil Judge upheld the objection of the auction purchaser and held that the application of the judgment-debtor was not maintainable in view of the fact that he had not made any necessary deposit of 121/2% of the sale price nor filed the security along with the application.

(3.) The learned counsel for the applicant, Mr. Rajaram Agarwal, has contended that the true meaning and scope of the proviso to Rule 90 of Order XXI, C. P. C. is that 121/2% of the sale price in cash or security for the same should be deposited, by the judgment-debtor within the time allowed by the court. He contended that the proviso did not require that the applicant should make the deposit or give security along with the application. In Order to appreciate the contention of the learned counsel it would be useful to quote the Proviso to Rule 90 of Order 21, C. P. C. in full: