SULEKHA KHATUN Vs. UNITED BANK OF INDIA LTD

JUDGEMENT

(1.) ONLY material facts are stated hereunder. Petitioner 1 is the mother guardian of minor petitioners 2 to 4. Opposite party 1 is the decree-holder and opposite party 2 is the auction-purchaser. The sale of the disputed property belonging to the petitioners took place on 17-11-66. On 16-12-65 the petitioners filed an application under Order 21, Rule 90, Civil Procedure Code, for setting aside the sale. As they had not deposited the 12 1/2 per cent of the sum realised by the sale, they were called upon by 23-12-65 to deposit the sum and to explain how the application was maintainable without the deposit. On 5-1-66 the petitioners filed an application for extension of time for making the deposit. On 13-1-65 the petitioners filed an application for allowing them to furnish property security, The decree-holder and the auction-purchaser filed objections On 2-7-66 the learned subordinate Judge passed the following order: 'heard counsel on the amendment petition and the petitioner's petition dated 13-1-66 for furnishing property security. The amendment petition is allowed subject to limitation to be considered at the hearing. The petition for property security is dismissed. Amend the cause title and the register. The petitioners shall furnish cash security of Rs. 5000 xx xxx xxx xx xx the Civil Revision has been filed against this order

(2.) THE only point urged by Mr. Misra is that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally and with material irregularity in rejecting the application for furnishing property security without assigning any reasons and, as such, the impugned order cannot be sustained. The contention necessitates an examination of Order 21, Rule 90, C. P. C. The Rule, as amended by the Patna high Court, has been adopted by the Orissa High Court. The Rule with the amendment so far as relevant may be quoted-90. (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. (i) Provided that no application to set aside a sale shall be admitted. (a) x x x x x (b) unless the applicant deposits such amount not exceeding 12 1/2 per cent of the sum realised by sale or such other security as the Court may in its discretion fix, unless the Court, for reasons to be recorded, dispenses with the deposit.

(3.) UNDER Proviso (i) (b), by the time the application under Order 21, Rule 90 is to be admitted, the applicant is to deposit an amount not exceeding 12 1/2 per cent of the sum realised by the sale as the Court may in its discretion fix. Thus 12 1/2 per cent is the maximum. The Court may in its discretion fix any sum less than 12 1/2 per cent, or accept any security other than deposit in Court. When such wide discretion is given to the Court, it must be judiciously exercised. The Court would apply its mind to the facts on the basis of which me applicant makes a prayer for depositing a lesser sum or for furnishing security and t6 the objections of the decree-holder and the auction-purchaser. It follows as a logical corollary that reasons must be assigned as to why a lesser sum is not fixed or security is not accepted.