HINDI PRACHARAK PRAKASHAN Vs. G K BROTHERS

JUDGEMENT

(1.) THIS is a judgment debtors' revision under Section 115 of the Code of Civil Procedure against the judgment and order of the court 26-Rep.-1989 below dismissing the objection filed under Order XXI rule 90 of the Code of Civil Procedure (for short 'the Code') on the ground of non-compliance of clause (b) to proviso added by the Allahabad High Court to Order XXI rule 90 of the Code. The relevant proviso reads ;

(2.) WHAT happened in this case was that in execution of the money decree obtained by the opposite party M/s. G. K. Brothers, Birhana Road, Kanpur, the house of the applicants was attached and sold. The applicants filed application under Order XXI rule 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 12-1/2% (twelve and a 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 Order XXI rule 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 Order XXI rule 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 had 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 Order XXI rule 90 of the Code was filed by the judgment-debtors in 1981, but the requirement of the proviso (b) to Order XXI rule 90 had not been complied with. Against this order, the present revision has been filed.

(3.) ON the basis of Section 97 of the Code (Amendment Act) counsel urged that as the proviso (b) added by the Allahabad High Court in sub-rule (1) is consistent, therefore, the same stands repealed. Section 97 (1) of the Code reads thus :