BABU UPENDRA NATH BASU Vs. PANDAYA GULAB SARKAR

JUDGEMENT

(1.) The question referred to this Full Bench is, whether the amendment made to Order 21, Rule 90, Civil P.C., making the deposit of 12 1/2 per cent, of the amount of the sale proceeds or the furnishing of security as a condition of the admission of the application under the rule is ultra vires the High Court under Section 120(2) of the Code? The matter was referred to a Pull Bench by reason of a decision of two Judges of this Court, dated 19 April 1939, by which the Court confirmed the decision of the lower Court declining to dispense with the deposit as provided by the rule. Having regard, however, to a decision of the Full Bench of the Rangoon High Court in O.N.R.M.M. Chettyar Firm V/s. Central Bank of India Ltd. AIR (1937) Rang 419 to the effect that a rule not dissimilar to the one before us was beyond powers of the rule-making authority of the High Court at Rangoon, the question which I have stated has arisen for the determination of this Pull Bench. Order 21, Rule 90, Civil P.C., as amended, provides in Sub-clause (1): Provided that no application to set aside a sale shall be admitted unless (a) it discloses a ground which could not have been put forward by the applicant before the sale was concluded, and (b) the applicant deposits with his application such amount, not exceeding 12 1/2 per cent, of the sum realized by the 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.

(2.) It was contended by the learned advocate appearing on behalf of the judgment-debtor that the amendment of the rule put an obstacle in the way of his exercising his common law right to have the sale of his property set aside. The argument is fallacious. No such common law right exists. Had it not been for the rules under the Civil Procedure Code, apart always from questions of fraud, there would be no such right in the judgment-debtor. It would be immaterial whether his property is sold at a high or low price and the ground of material irregularity arises only by reason of directions of the Legislature that the property should be sold subject to certain rules and conditions. Again it was argued that the amendment placed an obstacle in the way of a judgment-debtor exercising his rights under Order 21, Rule 90 that the making of the rule which provides for the deposit of money or security as a condition precedent to his application was a power which was beyond the rule making authority, as it would affect substantive rights and not merely questions of procedure. Section 122, Civil P.C., provides: High Courts established under the High Courts Act, 1861, or the Government of India Act, 1915....may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in Schedule 1.

(3.) It will be seen that the amendments of the rules allowed are as regards "regulating their own procedure and the procedure of the Civil Courts." This argument to some extent depends upon a construction of the amendment which was decided against in the Full Bench decision of this Court in Brij Behari Lal v. Firm Srinivas Ram Kumar AIR (1939) Pat 248. There the judgment-debtor had made an application, but had omitted to make the deposit with the application. That deposit was made at a subsequent date. The original application was within the period of limitation, i.e. thirty days, but the deposit was beyond that period. The question which arose in that case was, whether the application was barred by limitation. This Court held that it was not so barred; that the question of the deposit was within the discretion of the executing Court, and that Court must exercise its discretion either in favour or against the applicant and that it was not necessary, as a condition precedent to and at the time of filing of an application, for the judgment-debtor to make the deposit.