Pandrang Row, J - (1.)THIS is an appeal from the order of the Subordinate Judge of Coimbatore dismissing an application to set aside a sale under Order 21, Rule 90, Civil Procedure Code, on the ground that the security required to be furnished by his order made a few days earlier, had not been furnished. The only ground taken in this appeal is that the order of the Subordinate Judge requiring security to be furnished is itself without jurisdiction and therefore the order dismissing the petition to set aside the sale on the ground that the security has not been furnished is wrong.
(2.)THERE is no doubt that in this case the learned Subordinate Judge did not bear in mind that under Order 21, Rule 90 the Court could demand security only before admitting the application and not afterwards. In this case it is clear from the endorsements made on the petitions that notice was ordered in both the petitions, that is the petition to set aside the sale and also the petition to dispense with security and the Advocate on the other side was actually heard before orders were passed in both the petitions. It cannot therefore be said that either of the petitions had not been admitted. Usually and rightly the issue of a notice to the other side is regarded as a step showing that the petition has been admitted and certainly the actual hearing of the other side before orders are passed is only making the matter more certain. It is quite possible of course that the lower Court did not intend really to admit the petitions, but if in law the procedure adopted by it has necessarily the effect of having brought about the admission of the petitions, it is not possible for us now to regard them as not having passed the admission stage when the order to give security was made. We must therefore uphold the appellant's contention that the order requiring security was one passed without jurisdiction and that accordingly the order dismissing the application on the ground that security had not been furnished is wrong and must be set aside. The appeal is accordingly allowed and the petition remanded to the Court below for being heard according to law. The appellant is entitled to his costs of this appeal from the respondents.