1963 (3) TMI 80 - HC - Indian Laws

Summary

Issues:
1. Interpretation of the word 'entertain' in the proviso added to Order XXI, Rule 90, C.P.C.
2. Compliance with the proviso before the limitation for filing the application for setting aside the sale expires.
3. Conflict between different decisions of the High Court regarding the interpretation of the proviso.
4. Requirement of depositing the security amount at the time of presenting the application for setting aside the sale.

Analysis:
1. The main issue in this judgment revolves around the interpretation of the word 'entertain' in the proviso added to Order XXI, Rule 90, C.P.C. The execution Court rejected the application of the judgment-debtor for setting aside the sale as he failed to deposit the security within the specified period. The Court referred to previous decisions to understand the meaning of 'entertain.' The applicant argued that compliance with the proviso should be made before the limitation for filing the application expires.

2. The judgment discusses the importance of complying with the proviso before the limitation for filing the application for setting aside the sale expires. The Court emphasized that while the application can be filed within the time limit, compliance with the proviso should also be completed within the set timeframe. Failure to comply with the proviso within the specified period may result in the application being rejected as not entertainable. The Court cited a case where timely application for filing security was made, but due to court delays, the applicant was allowed to correct the bond after the limitation period had expired.

3. There was a conflict between different decisions of the High Court regarding the interpretation of the proviso. The Court reconciled the conflicting judgments by highlighting that the requirement to deposit the security amount at the time of presenting the application for setting aside the sale is not mandatory. The judgment overruled the decision relied upon by the lower court, clarifying that compliance with the proviso is necessary for consideration of the application but not a prerequisite for the application to be within the limitation period.

4. The Court clarified that the proviso added by the High Court only signifies that the application for setting aside the sale will not be adjudicated upon until compliance with the proviso is met. It was emphasized that failure to comply with the proviso before the limitation period for filing the application expires does not render the application time-barred. The judgment allowed the revision, set aside the lower court's order, and directed the executing Court to provide an opportunity for the applicant to comply with the proviso before considering the application on its merits.