R D K VENKATALINGAMA NAYANIM BAHADUR VARU Vs. RAJA INUGANTI RAJAGOPALA VENKATA NARASIMHA NAYANIM GARU

JUDGEMENT

(1.) The subject-matter of this appeal is a sale in execution of a decree in O.S. No. 86 of 1916 held on the 30 September, 1939. On the 27 October, the appellant applied under Order 21, Rule 90 to have the sale set aside. The learned Judge ordered that he should furnish security under the proviso to Rule 90 and granted him time for one week for this purpose. On the same day (31 October) the appellant filed another application asking for more time for furnishing security, and eventually time was extended to the ll November, on which day a draft security bond was tendered, to the Court by the appellant. On the 15 November, without passing any orders in regard to the adequacy of the security tendered or to the necessity for furnishing any registered security bond, the Court issued notice to the opposite side; When the respondent appeared he took the objection that the property offered as security was not sufficient and the Court ordered the security to be tested. The result of the test was that the property offered as security was found to be wholly inadequate and the Court thereupon dismissed the application of the appellant without considering it on its "merits, on the ground that he had failed to furnish security. The appellant appeals against that order.

(2.) The first point taken in appeal is that by issuing notice on the 15 November, the Court had admitted the application and had therefore precluded itself from dismissing it except after consideration on the merits. This argument appears somewhat startling to us. But it is sought to be supported by the enunciation of a legal principle that whenever a Court issues notice , whatever the circumstances may be, the Court must be deemed to have admitted the petition, and therefore no further steps can be taken in regard to the dismissal of a petition under Rule 90 because security has not been furnished. We have been referred to two rulings in this connection : one the judgment of Mr. Justice Mockett reported in Narasimha Pattamahadevi V/s. Annan Naidu (1940) 1 M.L.J. 350 and another judgment by a Bench of this Court of which one of us was a member, reported in Chidambaram Pandaram V/s. Lakshminarayana Chettiar (1941) 2 M.L.J. 109 In the former case, it has been held that ordinarily the decision of the Court to issue notice is tantamount to the admission of an application : and in the second case the same point of view has been taken and the learned Judges go even further and say that even though the Court below did riot intend really to admit a petition, if in law the procedure adopted by it has necessarily the effect of having brought about the admission of the petition, then it must be deemed that the petition has been admitted independently of the intention of the Court. We cannot find in either of these judgments any comprehensive principle that in all circumstances the mere issue of a notice by the Court must be considered to be the equivalent of an admission of an application. In the two cases which have been brought to our attention, the circumstances were that a petition was first filed and notice was issued, and it was only after the notice had been served and the respondent has appeared that the Court began to consider the question raised before it by the respondents of the necessity for calling upon the petitioner to furnish security. In the present case, when the petition was filed by the petitioner, the Court called upon him, before issuing notice, to furnish security. The facts therefore present this very essential point of difference. In both Narasimha, Pattamahadevi V/s. Annan Naidu (1940) 1 M.L.J. 350, Chidambaram, Chettiar V/s. Lakshminarayana Chettiar (1941) 2 M.L.J. 109 there was no possible room for any argument that the Court could have meant anything else by issuing the notice than to admit the application. In the present case the learned Judge in the order now appealed against has carefully analysed the facts and circumstances and has come to the conclusion that when the Court issued the notice on the 15 its obvious intention was that that notice should be provisional. The Court assumed that the petitioner, having filed a draft bond on the llth November, would proceed in due course to file a registered bond, and assumed also that in all probability that registered bond would be found to deal with property sufficient for the purpose of furnishing security. It therefore issued notice to save time, and provisionally, so that when the necessary formalities were completed by the petitioner, the Court could proceed to hear the application on its merits. The only alternative which we think is open to the appellant in this appeal is to convince us that on the 15 November the decision of the Court to issue notice meant that the Court had changed its mind, and that after calling for security on the 31 October and after waiting until the draft bond had in fact been presented, it decided that after all no security was necessary. We are quite unable to agree with this view of the attitude of mind of the lower Court in the absence of any kind of record which would give any reason for this change of intention. We think the learned Subordinate Judge who passed the order now appealed against (who incidentally was not the same Judge who passed the orders in November) has come to the only reasonable conclusion, and has rightly divined the real intention of his predecessor,, which was to issue notice provisionally. After all, in spite of the incidental remark made in the judgment in, Chidambaram Pandaram V/s. Lakshminarayana Chettiar (1941) 2 M.L.J. 109 the essential element in the admission of an application is the act of the Court admitting it. As was there held, if some act has been done which in law can amount to nothing else than the admission of an application, then the application must be deemed to be admitted, even if the Court did the act without really applying its mind to its consequences. But whereas in this case, we are able upon the facts to ascribe to the Court a quite different intention when it issued the notice, then if would be absurd to hold that there is any principle of law % which the Court should be deemed to have done what it consciously did not intend to do. It is clear therefore to us that in issuing notice, the Court did not intend to deprive itself of the power of deciding whether the security to be eventually furnished by the petitioner was adequate or not, and when it was found that the security was not adequate, the Court was entitled under Rule 90 as now amended to dismiss the application without any further consideration of its merits.

(3.) The second point argued in appeal was that even though the Court had found that the security actually furnished was insufficient, it ought to have accepted the offer of the appellant to furnish further security within a brief interval. The Court was not inclined to accept this offer and considered that it was probably not made bona fide. This is a matter entirely for the discretion of the executing Court and we can see no reason why we should interfere with its exercise of its discretion in this particular case, especially as the result of the testing order showed that the security originally offered was grossly inadequate. So far therefore as this petition can be held to have fallen under Order 21, Rule 90, we hold" that it was rightly dismissed by the learned Subordinate Judge.