1962 (2) TMI 120 - HC - Indian Laws

Summary

Issues Involved:
1. Preliminary objection regarding the special appeal's admissibility under Section 104 Civil Procedure Code.
2. Applicability of Clause (b) of the proviso to Rule 90 of Order XXI Civil Procedure Code.
3. The appellant's failure to comply with Clause (b) and its implications.
4. The execution court's dismissal of the appellant's application on grounds of locus standi and lack of substantial injury.

Detailed Analysis:

1. Preliminary Objection Regarding Special Appeal's Admissibility:

The respondents raised a preliminary objection that the special appeal is barred by Section 104 Civil Procedure Code. Sub-section (1) of Section 104 allows appeals only against orders specified in Rule 1 of Order XLIII. Sub-section (2) of Section 104 bars a second appeal against an order made under Sub-section (1). The appellant argued that the special appeal jurisdiction survives under Section 4 Civil Procedure Code, which preserves special jurisdiction or power conferred by other laws. The court overruled the preliminary objection, stating that Sub-section (2) of Section 104 does not specifically limit the special jurisdiction conferred by Rule 5 of Chapter VIII of the Rules of Court.

2. Applicability of Clause (b) of the Proviso to Rule 90:

Clause (b) of the proviso to Rule 90 of Order XXI was added on June 1, 1957. The appellant argued that he acquired a vested right to make an application under Rule 90 as it stood on April 4, 1957, the date of the execution application. The court held that Rule 90 provides a remedy for setting aside a sale due to defects, and Clause (b) prescribes the condition for availing that remedy. It is a procedural rule and governs all applications moved after its enactment. The right to challenge the auction sale accrued only after the sale, not at the time of the execution application.

3. Appellant's Failure to Comply with Clause (b):

The appellant did not deposit the required amount or furnish security as mandated by Clause (b). The court emphasized that no duty is cast on the court to act without invitation; the applicant must furnish necessary facts and request the court to fix the amount of deposit or security. The court cannot judicially consider an application not backed by deposit or security. The appellate court is not obliged to give an opportunity to comply with Clause (b) if the appellant failed to do so in the execution court.

4. Execution Court's Dismissal on Grounds of Locus Standi and Lack of Substantial Injury:

The execution court dismissed the appellant's application, stating he had no interest in the properties and had not suffered substantial injury due to irregularities in the auction sale. The court noted that Chaman Lal Gupta proceeded with the auction sale, assuming the appellant was the owner, despite a previous auction sale in favor of Mainawati, which was later set aside. The court ruled that the appellant had the locus standi to maintain the application. However, the court found no evidence of substantial injury, as the sale fetched Rs. 22,300/- against an estimated value of Rs. 20,000/- in the sale proclamation. The appellant failed to prove substantial injury, and the alleged irregularities did not amount to illegalities rendering the sale null and void.

Conclusion:

The court dismissed the appellant's application under Rule 90, finding no substantial injury and no breach of Clause (b). The special appeal was also dismissed with costs.