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TMI Blog1962 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... cree against them. In execution of her decrees she also applied for sale of the aforesaid properties, Thus at one and the same time two decree- holders Chaman Lal Gupta and Mainawati were proceeding against the aforesaid properties. It appears that the said properties were sold first in execution of Mainawati's decree, Chaman Lal filed an objection in her execution case. His objection was allowed and the sale was get aside on may 24, 1958. But before that on November 21, 1957, those properties were also sold in the execution proceedings started by Chaman Lal Gupta himself. The appellant moved an application for setting aside the sale in the execution case started by Chaman Lal Gupta under Rule 90 of Order XXI Civil Procedure Code. The application was dismissed by the execution Court. It held that the appellant had no interest in the properties in dispute and that no substantial prejudice had been caused to him by irregularities in the auction sale The appellant then filed an appeal in this Court against the order of the execution Court dismissing his application. The leaded single Judge dismissed it on a preliminary ground that the appellant's objection could not be enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Code. That decision is not good law now. The second case was decided under the present Code, but the learned Judges were not referred to Section 4. It was snot followed by the Court subsequently (Ram Sarup v. Mt. Kaniz Ummehani AIR1937All165 and is now impliedly Overruled by the Supreme Court (Union of India v. Mohindra Supply Co.: [1962]3SCR497 . 4. We therefore overrule the preliminary objection and proceed to decide the appeal on merits. 5. Rule 90 of Order XXI, as amended by this Court, reads:- 90. (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 Provided that no application to set aside a sale shall be entertained - (a) upon any ground which could have been taken by the applicant on or before the date on which the sale Proclamation was drawn up; and (b) unless the applicant deposits such amount not exceeding twelve and half per cent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obtain review of judgment is a vested right and is of no assistance to us. 7. The argument that there is no breach of Clause (b) unless and until the Court of its own accord has fixed the amount of deposit Or of security does not look attractive. No duty is cast on the Court to act without invitation. Indeed it cannot exercise' discretion unless the applicant furnishes necessary facts and prays for fixation of the amount of deposit or of security. Admittedly, nothing of the kind was done by the appellant. 8. The dictionary meaning of the word 'entertain' is to deal with; to admit to consideration. In its application to Clause (a) the word bears the meaning of admitting to consideration. That clause enjoins the Court from considering the application on any ground which could have been taken on or before the drawing up of the sale proclamation. In its application to Clause (b) the word should bear the same sense. Accordingly, while the court cannot refuse to take an application which is not backed by deposit or security, it cannot judicially consider it. It is expected that the Court would ordinarily give an opportunity to the applicant to comply wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s distinguishable. Firstly, it does not appear that learned Judges were referred to the enlarging implication of the expression 'relating to' in Section 128. Secondly, the rule in that case was entirely different from the rule before us in two respects: (1) deposit was required to be made along with the application and (2) the amount of the deposit was fixed and invariable. Clause (b) does not oblige an applicant to make a deposit along with his application. Nor does it make the amount of deposit invariable. It gives discretion to the Court to fix a lesser amount than twelve and half per cent of the sum realised by the sale; the Court may even mitigate the vigour of the rule by requiring security instead of deposit; and in proper cases it may for reasons to be recorded relax the rule altogether. Thirdly, learned Judges seem to be somewhat oppressed if we may say so, by the 'onereus' character of the rule. With respect, it seems to us that though that element is sometimes considered in testing the vires of a bye-law, it is not a relevant consideration in the event of a challenge to the vires of a rule. 12. Madurai Pillai v T. Muthu Chetty ILR Mad 823 : (AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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