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TMI Blog1962 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Civil Judge. The attention of the learned Single Judge was invited to a decision of this Court in Bhawan Ram v. Kunj Behari Lal 1960 All LJ 578 : (AIR 1962 All 42) in which it was held that the proviso introduced by this Court to Rule 90 of Order XXI bars entertaining an objection altogether if the requirements of the proviso are not complied with by the time up to which the objection can be legally entertained and that the objection cannot thereafter be validly made nor can the security deposit be accepted The learned Single Judge was of the opinion that the view taken by this Court in Bhawan Ram's case 1960 All LJ 578 : AIR 1982 All 42 was not sound. On his reference the matter was referred to the Division Bench. 2. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice nor filed the security along with the application. 3. The learned counsel for the applicant, Mr. Rajaram Agarwal, has contended that the true meaning and scope of the proviso to Rule 90 of Order XXI, C. P. C. is that 121/2% of the sale price in cash or security for the same should be deposited, by the judgment-debtor within the time allowed by the court. He contended that the proviso did not require that the applicant should make the deposit or give security along with the application. In Order to appreciate the contention of the learned counsel it would be useful to quote the Proviso to Rule 90 of Order 21, C. P. C. in full: "Provided that no application to set aside the sale shall be -entertained: (a) upon any ground whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the applicant has deposited either such amount not exceeding 121/2% of the sum realised by the sale or furnished such security as required by the Court. This in our opinion clearly goes to indicate that the stage at which the question as to whether the applicant has complied with the terms of the proviso to Rule 90 of Order XXI arises is when the court is actually seized of the application filed by the judgment-debtor for setting aside the sale. 5. The expression 'entertain' in out opinion does not mean the same thing as the filing of the application or the admission of the application by the court The dictionary meaning of the word 'entertain' is to deal with or to take a matter into consideration. A court hearing an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The use of the word 'entertain' in the proviso to Rule 90 of Order XXI denotes a point of time at which an application to set aside the sale is heard by the court. This appears to be clear from the fact that in the proviso it is stated that no application to set aside a sale shall be entertained 'upon any ground which could have been taken by the applicant on or before the date on which the sale, proclamation was drawn up'. Surely, the question as to the consideration of the grounds upon which the application is based can only arise when it is being considered by the Court on the merits, that is, when the court is called, upon to apply its mind to the grounds urged in the application. In our view the stage at which the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive such security for the performance of the decree a9 the court may on a previous application made by him in this behalf had directed. This proviso clearly postulates that the applicant should have already applied for giving security for the performance of the decree and it is only when he had done so that an application to set aside the ex-parte decree would be entertained by the court. Thus the legislature clearly intended that the applicant shall have a right to make an application to set aside a decree if he had already obtained permission of the Court to furnish the necessary security for the performance of the decree or compliance with the judgment of the court. Had this been the intentions of the proviso to Rule 90 of Order XXI, C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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