DUMPA VENUGOPALA REDDY Vs. CHILLA LAXMIKANTHAM

JUDGEMENT

(1.) This Civil Revision Petition is filed by two Judgment-debtors in O. S. No 4 of 1976 on the file of the Court of the Subordinate Judge, Visakhapatnam. The judgment-debtors mortgaged their properties to the first respondent the plaintiff and failed to redeem the mortgage debt and suffered a decree at the hands of the first respondent the mortgagee in the above-mentioned O.S. No. 4 of 1976. The mortgaged properties were brought to sale and were sold in a Court auction on 15th September, 1982, for a sum of 1,39,000. The second respondent was declared in that Court auction as the highest and the successful auction- purchaser of the mortgaged properties. But before the sale was confirmed in favour of the second respondent, the two judgment debtors filed an application on 16th November, 1982, in the Court of the Second Additional Subordinate Judge, Visakhapatnam, for setting aside the sale of their properties held on 15th September, 1982. This application was filed by them under Order 21, rule 90 of the Code of Civil Procedure. It alleged fraud and material irregularities as having vitiated the court sale of their properties. Normally, this application should have been entertained by the Court but the office of the Subordinate Judge took an objection as to the maintainability of the application. The office objection was grounded on the failure of the applicants to furnish security alongwith the application seeking to set aside the Court sale. This objection raised by the office was upheld by the learned Subordinate Judge, by his judicial order dated 8th December, 1982. Against that order, the present Revision Petition has been filed.

(2.) The Judgment of the Court below shows that the learned Subordinate Judge, Visakhapatnam placed reliance on the language of a proviso to Order 21, rule 90, Civil Procedure Code, for holding that an application under Order 21, rule 90, Civil Procedure Code, cannot be entertained unless accompanied by a bond of security or deposit of money into Court. The lower Court proceeding on the assumption that an application filed under Order 21, rule 90, Civil Procedure Code, cannot be maintained unless it is accompanied by a bond of security, merely considered the question whether that proviso to Order 21, rule 90 was repealed by section 97 of the Central Government Act (Act CIV of 1976) by which extensive amendments had been made by the Parliament to the Civil Procedure Code. The Lower Court having answered that question against the judgment-debtors and having held that section 97 of the afore-mentioned Union Act, did not have the effect of repealing the particular proviso to Order 21 rule 90, Civil Procedure Code, upheld that office objection to the maintainability of the application filed by the judgment-debtors under Order 21, rule 90, Civil Procedure Code, without being accompanied by a bond of security or deposit of money into Court.

(3.) Sri T. Veerabhadrayya, learned Counsel for the petitioners assailed the order under revision on two grounds. The first ground is that the proviso in question which was added to the Civil Procedure Code, by way of a Madras amendment in the year 1936, stood repealed by reason of section 97 of the afore-mentioned Central Act CIV of 1976 and that therefore the lower Court was wrong on relying upon a legal provision which was no longer on the Statute Book. The second objection which has been raised by Sri Veerabhadrayya to the validity of the order under revision is that even on the assumption that the Madras amendment of 1936 to Order 21, rule 90, Civil Procedure Code continues to be on the Statute Book, the order of the learned Subordinate Judge is ultra vires of his powers under that very Order 21, rule 90, Civil Procedure Code. The argument of the learned Counsel is that there is nothing the language of the proviso to Order 21, rule 90, Civil Procedure Code, which requires an applicant to furnish security or to make a deposit along with the application itself. The learned Counsel argued that proviso only enables the Court to call upon the applicants ("Judgment- debtors) to show cause why they should not be directed to furnish security or make a deposit and to consider their explanation and to finally make an order directing the furnishing of security or depositing money in an appropriate case, an other words, the argument of the learned Counsel is that the lower Court misread and misunderstood the scope of the proviso to Order 21, rule 90, Civil Procedure Code.