1962 (3) TMI 125 - HC - Indian Laws

Summary

Issues:
Interpretation of the proviso to Rule 90 of Order XXI, C. P. C. regarding the conditions for entertaining an application to set aside a sale.
Compliance with the requirements of the proviso, specifically regarding the deposit of 121/2% of the sale price or furnishing security.
Determining the correct timing for the judgment-debtor to make the necessary deposit or provide security as per the proviso.

Analysis:
The judgment-debtor filed an application under Rule 90 of Order XXI, C. P. C. to set aside a sale due to irregularities. The auction purchaser objected, stating the judgment-debtor had not deposited 121/2% of the sale price or provided security as required by the proviso to Rule 90. The judgment-debtor later sought time to give the necessary security, which was granted by the Civil Judge. However, upon hearing, the Civil Judge upheld the objection, ruling the application was not maintainable due to non-compliance with the proviso (paragraph 2).

The key contention was the interpretation of the proviso to Rule 90. The judgment-debtor argued that the proviso did not mandate making the deposit or providing security along with the application, but within the time allowed by the court. The proviso stipulates that the application shall not be entertained unless the deposit or security is made, indicating compliance before the court decides on the application (paragraph 3).

A similar case highlighted that the word 'entertain' in the proviso implies considering the application on its merits, not just filing it. The timing for deposit or security provision is crucial, aligning with the application's hearing by the court (paragraphs 5-7).

A comparison with the Provincial Small Cause Courts Act revealed that the legislature intended flexibility in complying with the proviso, allowing for deposit or security provision before the court decides on the application. The judgment emphasized the importance of interpreting the proviso to Rule 90 in a manner that enables the judgment-debtor to fulfill the requirements before the court's final decision (paragraph 9).

The judgment rejected the narrow interpretation of 'entertain' equating to 'filed,' emphasizing that compliance with the proviso conditions before the court's decision is essential. The previous decision on a similar matter was deemed incorrect, and the revision was allowed, setting aside the Civil Judge's order and remanding the application for a decision according to law (paragraphs 10-13).