BRIJ BEHARI LAL Vs. FIRM SRINIVAS RAM KUMAR

JUDGEMENT

(1.) This is a petition for revision of an order of the learned District Judge of Shahabad affirming an order of the learned Munsif of Sasaram dismissing, the petitioner's application to set aside a, certain auction sale which was held on 4th August 1936. The petition came in the first place, before Wort J., who referred it to a larger Bench. James and Agarwala J J. being of opinion that the points involved were of considerable importance, referred the matter for the constitution of a larger Bench. Accordingly the petition was heard-by this Full Bench of five Judges. The application to set aside the sale, which is dated 2 September, 1936, was made by Brij Behari Lal who was a person entitled to share in a rateable distribution of the sale proceeds and was an application under Order 21, Rule 90, Civil P.C. The application, was registered in the Court of the learned Munsif as a miscellaneous case, and notices were served on the opposite party. On 14th October 1936, the petitioner Brij Behari Lal deposited in Court a sum amounting to per cent, of the sale proceeds, and on 25 May 1937, the application came on for hearing before the learned Munsif. The opposite parties took a preliminary objection that as no sum was deposited with the application to set aside the sale as required by the Rule within 30 days from the date of the sale, the application was barred by time. The learned Munsif upheld this preliminary objection and on appeal the learned District Judge affirmed the decision of the Court below and dismissed the application. It has been contended before this Court that in dismissing the application the Courts below were clearly wrong and that this is a case in which revision lies. As I have stated, the application to set aside the sale was one under Order 21, Rule 90, Civil P.C.

(2.) This Rule has been amended by this Court, and the amended Rule, under which the application was made, is in these terms: (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 a material irregularity or fraud in publishing or conducting it: (i) 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 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. (ii) Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (2) In case the application is unsuccessful the costs of the opposite party shall be a first charge upon the deposit referred to in Proviso (i)(b), if any.

(3.) The present Provisos have been substituted by this Court for the original Proviso to the Rule. It will be seen that by reason of Proviso (i)(b) no application to set aside a sale is to be admitted unless the applicant deposits with his application, such an amount not exceeding per cent, of the proceeds of the sale or such other security as the Court in its discretion may fix unless the Court dispenses with, the deposit altogether. In the present case the petitioner deposited neither a sum of money nor gave any security nor did he on or before making the application apply to the Court to dispense with the deposit. On 10th October 1936 however the petitioner applied to the Court to accept a deposit of per cent of the sum realized by the sale, and upon this application the Court made an order to issue a chalan. On 14 October 1936 the sum was actually deposited in Court. An application to set aside a sale must be made within thirty days from the date of the sale: see Limitation Act, 1908, Schedule 1 Art. 166. The sale took place on 4 August 1936, and as the application to set aside the sale was made on 2 September, 1936, it was within thirty days of the sale. The deposit however was not made until 14 October 1936, which was long after the expiry of the period of thirty days from the date of sale. It was urged by the opposite parties in the Courts below that where the deposit had not been dispensed with by the Court, an application accompanied by no deposit was no application at all within amended Order 21, Rule 90, and that the defect in the application could not be cured by a deposit made on 14 October 1936, because an application on that date was clearly barred by limitation.