G K BROTHERS Vs. HINDI PRACHARAK PRAKASHAN

JUDGEMENT

(1.) ORDER :- This is a judgment-debtors' revision under S.115 of the Code of Civil Procedure against the judgment and order of the Court below dismissing the objection filed under O.XXI, R.90 of the Code of Civil Procedure (for short 'the Code') on the ground of non-compliance of Cl.(b) to proviso added by the Allahabad High Court to O.XXI, R.90 of the Code. The relevant proviso reads :

(2.) What happened in this ease was that in execution of the money decree obtained by the opposite party M/s. G.K. Brothers, Birtana Road, Kanpur, the house of the applicants was attached and sold. The applicants filed application under O.XXI, R.90 of the Code for setting aside the sale in 1981 and the same was registered as Miscellaneous Execution Case No. 2 of 1981. But they did not deposit 121/2% (twelve and half per centum) of the sale consideration, Which was required under the High Court amendment. On April 17, 1982, the Civil Judge rejected the application on the ground that the security money was not deposited by the judgment-debtor. He ordered, "Case called out. Applicant is absent. D.H. is present. Auction-purchaser is present. Security also not deposited. Application under O.XXI; R.90 is not maintainable, hence rejected." The applicants filed a restoration application, Which was registered as Miscellaneous Case No. 93 of 1983. The same was allowed on December 15, 1986. December 5, 1987, was fixed for disposal of the application of the applicants under O.XXI, R.90 of the Code. On that date the Court rejected the application for adjournment moved by the judgment-debtors. The Court held that the applicants since has not complied with the condition precedent of depositing twelve and a half per centum of the sale consideration in cash or furnished security, the objection was not maintainable. The Court below noted that although the application under O.XXI, R.90 of the Code was filed by the judgment-debtors in 1981, but the requirement of the Proviso (b) to O.XXI, R.90 had not been complied with. Against this order, the present revision has been filed.

(3.) The main argument of the learned counsel for the applicants was that since the Proviso (b) to O.XII, R.90 of the Code added by the High Court is inconsistent with S.96 of the Code (Amendment Act, 1976) (Act No.104 of 1976) the application of the applicants filed under O.XXI, R.90 of the Code could not be rejected on the ground of non-compliance of the conditions mentioned therein, Under O.XXI, R.90 a sale of immovable property in execution of a decree can be set aside on the ground of material irregularity or fraud in publishing or conducting the sale provided he proves that he has sustained substantial injury by reason of such irregularity or fraud. The old R.90 has been substituted by the present new one of the Code (Amendment Act, 1976). Sub-rule (1) of the present rule is exactly similar as the old sub rule one. Except that the words 'of the purchaser' after the words 'the decree-holder in the present sub-rule are new. Under the old rule there was a conflict of decisions as to whether an auction-purchaser can apply to set aside a sale under the rule. On the recommendations of the Law Commission made in 27th report the words' 'or purchaser' have been added to make it clear that auction purchaser could also apply. In sub-rule (2) words' 'in publishing or conducting it' have been added. Sub-rule (3) is new. It provides that no application to set aside a sale shall be entertained on any ground which the applicant could have taken on or before the date of the proclamation of sale.