MOGAL JAN KHAN Vs. MTMEHDI BEGUM

JUDGEMENT

(1.) This is an application in revision by a judgment-debtor who applied under Order 21, Rule 90, Civil P.C., to set aside a sale of his properties. The date of the sale was 16 September 1935, and the date of his application was 20th September 1935. It was at one stage dismissed but was restored by order of the District Judge on appeal. After its restoration and the return of the record to the Munsif's Court, that officer, observing that the amended rules of Schedule 1, Civil P. C, have been brought into force on 1 March 1936, and that by those rules an applicant was required by Order 21, Rule 90(1)(b) to deposit with his application 12 per cent, of the sale price or other security fixed by the Court, directed the applicant to make such a deposit. The applicant protested, and this application in revision is presented on the substantial ground that this provision of the rule does not apply to the applicant and cannot be enforced against him.

(2.) In my opinion the application must succeed on this ground: the proviso to Rule 90, Clause (1) is that no application to set aside a sale shall be admitted unless certain conditions are fulfilled. That applies to every occasion on which admission of an application is sought after the date of coming into force of the rule. It cannot apply to applications which have been already admitted before the rule came into force. In other words, the rule forbids a Court to admit an application but cannot have the effect of setting aside the previous admission of an application. Another consideration is that the rule orders the applicant to deposit with his application a certain amount. When he made his application in September 1935, it was physically impossible for him after 1 March 1936, to deposit any amount with his application. The law is never deemed to order the impossible where such a construction can be avoided. Therefore, the applicant was not bound to fulfil the conditions in proviso (1) to Rule 90, Clause (1), and the Munsif had no jurisdiction to insist on his doing so. At the hearing another point was raised, namely, that the present Munsif has special powers up to Rs. 2,000 only, and the amount of the decree is beyond those powers. This is a matter which ought to be raised in the Court of first instance. I am not in a position to deal with it, here, because the exact valuation of the original suit has not been stated.

(3.) If the present Munsif in fact has not pecuniary jurisdiction, he may make a reference to the District Judge for an appropriate order transferring the proceedings to another Court. Let the record be sent down to the Court below. The applicant will get his costs: hearing fee one gold mohur.