A. P. Srivastava, J. - (1.) This is a judgment-debtor's appeal against an order rejecting her objection under order XXI, R. 90, C.P.C. In execution of a decree obtained against the appellant by the first respondent immovable property was purchased by the second respondent. The appellant had thirty days' time to file an objection under order XXI, Rule 90 C.P.C. In view of a proviso to that rule added by this Court the objection under Rule 90 could not be entertained. "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, dispenses with the requirements of this clause."
(2.) On the 13th December 1960, therefore the appellant applied that as she was not in a position to make a cash deposit she may be permitted to furnish security to the extent of Rs. 3,375, that being the twelve and half per cent of the amount of sale. She filed along with this application a security bond executed by one Mannu Singh and praying that security be accepted. In the security bond that was filed Mannu Singh, who had executed the bond, purported to mortgage his house described in the bond as security to the extent of Rs. 3,375. The date of the execution of the bond was the 13th December 1960. The bond was not registered and was also not executed in favour of any person. On the 14th December 1960 the decree-holder objected and contended that as the appellant was in a position to deposit the amount in cash her application for permission to furnish security in the place of cash deposit should be rejected. On the application made by the appellant office had also made a report pointing out that the security bond filed was not registered. The Court considered the appellant's application and the decree-holder's objection on the 15th December 1960 and passed an order permitting the appellant to file security to the extent of Rs. 3,375 and exempting her from depositing the amount in cash. The bond filed, however, was not accepted because the decree-holder wanted to file objections in respect of it. He was allowed two days' time to file objections and the case was directed to be put up for orders on the 19th December 1960. On the 16th December 1960 two applications were filed, one by the appellant and the other by Mannu Singh. In both these applications it was conceded that the bond filed needed correction and it was prayed that the bond may be permitted to be corrected by the addition of the words 'in favour of Sri Ram Autar Misra, II Civil Judge, Kanpur and his successor-in-office' at the appropriate place in the bond. On the 17th December 1960 the appellant filed her application under Or. XXI, R. 90 and prayed for the setting aside of the sale. The application was admittedly within limitation on that date. On the same date the decree-holder filed an objection to the security bond and prayed that the same may be rejected. On the 19th December 1960 the decree-holder filed an objection to the applications for amendment made by the appellant and her surety and prayed that the applications for the amendment of the security bond should be rejected. No orders were passed on these applications. On the 19th December 1960 office pointed out certain defects in the application filed under R. 90 and on the 22nd December 1960 the appellant was required to remove those defects. The defects were removed and on the 4th January 1961 the application was registered and notices issued to the decree-holder and the auction-purchaser in respect of it fixing the 4th February 1961 as the date for hearing. On that date, i.e., the 4th February 1961, the auction-purchaser appeared and filed an objection praying that the judgment-debtor's application under R. 90 on the 17th December 1960 be rejected with costs. The objection was heard by a learned Civil Judge and by an order dated the 6th March 1961 the learned Judge accepted the preliminary objection raised on behalf of the decree-holder and the auction-purchaser and rejected the objection filed by the appellant on the ground that the proviso about security had not been complied with. The learned Judge held that as the security bond filed was unregistered it was a waste paper and the appellant could not, therefore, be said to have complied with the requirements of the proviso added by this Court to Or. XXI, R. 90. It is against that order that the appellant had filed the present appeal.
(3.) It is contended in support of the appeal that the appellant did everything which she could to comply with the proviso. She obtained the necessary permission and actually filed a bond. She made an application for removing a certain defect in the bond but as no orders were passed by the Court in respect of the applications the defect could not be removed. The bond was not given back to her for getting it registered. Had she been allowed to get it registered the bond would have become valid and effective from the date of execution. In any case she had never been directed to furnish security of immoveable property. In the circumstances the learned Civil Judge was not justified in rejecting the application on the ground that the proviso had not been complied with.;