TAMMA VENKATA PARDHASARADHI Vs. TAMMA RAMACHANDRA RAO

JUDGEMENT

(1.) The appellant filed before the lower Court a petition under Order 21, Rule 90, C. P. c. and Section 47, C. P. C. for setting aside a sale. The husband of the fourth respondent and father of respondent 5 to 15 obtained a decree on the foot of a mortgage in O. S. No. 32 of 1964 on the file of the Subordinate Judges Court Guntur. The father of the appellant is judgment-debtor No. 1. The appellant is judgment-debtor No. 2 and his brother is judgment-debtor No. 3. The father and brother are respondents 1 and 2 in the appeal. There was a sale of the mortgaged property on 17-7-1968. Alleging that the sale was vitiated by several illegalities and irregularities like absence of notice, fraud, etc., and that the sale caused substantial loss to him the appellant filed the petition for setting aside the sale.

(2.) The petition was filed on 14-8-1968. The Courts office took an objection that neither security was furnished nor the decretal amount was deposited and the decretal amount was deposited and accepting the office note the Court directed the appellant on 22-8-1968 to furnish security or deposit the amount within seven days. This was obviously done without giving notice to the appellant and out giving notice to the appellant and calling upon him to show cause why he should not be directed to furnish security or make a deposit. The appellant represented the petition on 29-8-1968 stating that nit was an application not only under that it was an application not only under Order 21, Rule 90 but also under Sec. 47, C. P. C. that in any case the security or deposit Rule 90 is only discretionary and neither furnishing security nor making a deposit was necessary; and that notice of the objection might be sent to the respondent. This view of the appellant was not accepted by the Court. When the petition came up before the Court on 12-9-1968 the decree-holders counsel appeared on his own accord without Courts notice and sought an opportunity of making his representation before the petition was numbered. Thereupon the petition was posted to 20th of September, 1968. The decree-holders appeared through a counsel and the petition was adjourned to 11-10-1968 for objections were filed on behalf of the decree-holders. The petition was still unnumbered and arguments were heard thereon on 26th and 28th of November, 1968 and ultimately the Court rejected the unnumbered petition on 30th of November, 1968. The present appeal is directed against the said order or rejection.

(3.) Two principle questions appear to have been raised by the appellant before the lower Court. Firstly, once the Court had heard the advocates of the respondents and their objections it was tantamount that the court had taken cognizance of the petition and registered it and when that is done the court had no more jurisdiction to require the appellant either to furnish security or to make a deposit under Order 21, Rule 90, C. P. C. Secondly, the petition filed for setting aside the sale not so much under Order 21, Rule 90 but was one under Section 47 which does not require any security or deposit. In the light of the aforesaid two objections it was argued that the insistence on furnishing security or making a deposit was not proper. These contentions, as we have said, did not find favour at the hands of the lower Court. They have been reiterated before us by the learned counsel for the appellant. He has, in addition, argued that the direction of the Court dated 22nd of August, 1968 to the appellant either to furnish security or to deposit money within seven days without notice to the appellant is contrary to law. It has also been submitted that since this is a mortgage decree no further security is, in fact, necessary in this case.