K.S Hegde, J. - (1.) This is an appeal by special leave. It arises from Execution Case No. 16 of 1956 in the court of the First Additional Civil Judge, Varanasi. There in certain properties belonging to the judgment debtor were sold. The appellant moved the executing court under Order 21, Rule 90, Code of Civil Procedure to set aside the sale. His application was dismissed on the ground that he was not an interested party. Aggrieved by that order he went up in appeal to the High Court of Allahabad. The High Court reversed the finding of the lower court that the appellant was not an interested party but at the same time dismissed the appeal on the ground that as the appellant had not complied with the requirements of Rule 90, Order 21, Code of Civil Procedure, as amended by the Allahabad High Court his application was not maintainable.
(2.) The amended proviso with which we are concerned in this appeal reads thus: "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 of the sum realised by the sale or furnishes such security as the Court may, in its discretion, fix except when the Court for reasons to be recorded dispense with the requirements of this clause: Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud."
(3.) Clause (b) of the proviso was added on June1, 1957. The application with which we are concerned in this case was made on January 2, 1957. The applicant did not give security as provided in the newly amended clause nor did the court call upon him to do so. Before the executing court all the parties proceeded on the basis that the application was regularly made. The objection as to the maintainability of the application appears to have been taken for the first time in the High Court.;