BALMAKUND MARWARI Vs. FIRM PIRTHIRAJ GANESHDAS

JUDGEMENT

(1.) This is an appeal against an order of the Special Subordinate Judge of Ranchi rejecting an application for setting aside a sale in execution of a decree on the ground of the appellant not making the deposit required by law. The appellant judgment-debtor's property was sold on 3 September 1936, and an application for setting aside the sale was filed on 2 October, 1936.

(2.) The application was registered and the appellant was ordered to deposit the necessary cash security. On 3 October the appellant applied that he was a poor man and was unable to deposit cash and prayed that immovable property be taken as security. The learned Subordinate Judge ordered as follows: "The applicant's petition is rejected as it is simply to undo the effect of the amended Rule"; thereafter the application for setting aside the sale was rejected on 5th October 1936. It appears torn his order that the learned: Judge thought that accepting security other than cash deposit was in contravention of the Rule. But the Rule itself has deliberately provided that the Court may accept security other than cash as the circumstances justify. The Rule has been framed to eliminate frivolous applications and not to shut out genuine ones. It fixes 12 per cent, as the maximum security which can be required from an applicant for setting aside a sale. Within this limit, the Courts have been given ample power to fix such amounts as they think fit or to take any security other than the cash depositor; to dispense with any deposit or security altogether. The rule, as it stands, means that the Court is to fix the amount and the nature of the security and then the order is to be complied with; if not, the application is to be rejected.

(3.) The first order of the learned Subordinate Judge directed the applicant to deposit the "necessary security". The order perhaps meant that the. Court wanted the deposit of the maximum amount provided in the Rule, but it is unfortunately not clear. It ought to have been clear as to what amount was to be deposited. However when the applicant applied for permission to offer immovable property as security the Court ought to have considered the application on its merits and if it thought that there was no ground for granting it, it could reject it but not on the ground that it defeated the Rule. The framers of the Rule had in their minds cases in which discretion can be exercised in accepting landed property as security instead of cash. The learned Subordinate Judge did not apply his mind to the facts of the, ease and his order and the consequential order refusing the application for setting aside the sale must therefore be set aside.