- (1.) IN this F. A. F. O. the decree-holder appellant challenged the decision of the executing Court who has set aside the execution sale held on 21-5-78 by allowing the objection of the J. D. under O. 21, R. 90, C. P. C.
(2.) IN spite of service nobody has put in appearance on behalf of the respondent. From the facts of the case it appears that in pursuance of the decree in favour of the appellant certain properties of the respondent were attached. When the proceedings for execution took place only one house was put up for public auction on 21-5-78. Since no objection was filed within time the auction sale was confirmed on 2-8-78. The respondent filed objection on 2-9-78. These objections were allowed on 21-5-79 by the impugned order by which the Court held that the execution sale had taken place for a grossly inadequate sum and the property worth Rs. 50,000/was purchased by the decree-holder for Rs. 11,800/- only. This is the sole ground on which the objections have been allowed. Sri S. P. Srivastava, learned counsel for the appellant, has urged several points in support of the appeal. The first point that has been stressed before me is that the objection under O. 21, R. 90, C. P. C. , filed by the respondent did not accompany the deposit of 121/2 per cent of the auction money, as required by the proviso added to this Rule by this High Court. After the amendment the relevant proviso reads as under.- (a ). . . . . . . . . . . . . . . . . . . . (b) Unless the applicant deposits such amount not exceeding 12 1/2 per cent of the sum realised by the sale or furnished such security as the Court may, in its discretion, fix except when the Court for the reasons to be recorded dispenses 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.) INCIDENTALLY a question may arise as to what is the position of this amendment after coming into force of the Civil Procedure Code Amendment Act, 1976 (Act No. 104 of 1976 ). According to the Amending Act local amendments which were not consistent with the provisions of the Amended Act, are to be superseded by the provisions of the amending Act. On a comparison of the language of R. 90 and the language that has been incorporated after the amendment by Central Act No. 104 of 1976 I find that there is no substantial difference between the two, except that the auction-purchaser also has been made entitled to file an objection under this Rule. The other change is that the irregularity or fraud must now be confined to publishing and conducting of the sale. There is, therefore, hardly any inconsistency with the amended section. So far as the proviso is concerned this matter was considered recently by a learned single Judge of this Court in Rana Harish Chandra Jung v. Agricultural Bank of Garhwal Ltd. (1982 All LJ 749) where a similar point arose. The learned single Judge observed as under (para 3): - "things are said to be inconsistent when they are contrary to one to the other, so that one infers the negation, destruction or falsity of the other. But there is no difficulty in obeying the Parliament law as contained in O. 21, R. 90 and the amendment made to that provision by U. P. High Court simultaneously. Both provisions can be obeyed without any possibility of a conflict arising in their obedience. ";