Decided on September 27,1965

Banjari Lal Appellant
Sardar Kripal Singh Respondents


- (1.)The applicant who was a judgment -Debtor and whose immovable property had been put to sale, applied under Order 21 Rule 90 of the Code of Civil Procedure for setting aside the sale. Under Rule 90(1) no application to set aside a sale can 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". The executing court called upon the Appellant to deposit twelve and half per cent of the sum realised by the sale of his property and he failed to comply with the order within the time allowed for it. The executing court thereupon dismissed his application In this appeal it was contended that the executing court had no jurisdiction to demand, cash payment and that is was at the judgment -debtor's option either to deposit the cash or give security; the executing court only having a right to fix the amount of the security and it" nature There is no force in this contention. It is true that a judgment -debtor has been given the option of depositing the amount in cash or furnishing security but the option of furnishing security is subject to the discretion of the court. The security is to be fixed by the court and unless it is fixed by it no right inheres in the judgment -debtor to furnish it. If the court does not fix the security the second alternative cannot be adopted by the judgment -Debtor with the consequence that he is obliged to deposit the amount in cash
(2.)Here the executing court refused to fix the security i.e. to receive security of any amount and of any nature; the Appellant was, therefore, obliged to "deposit the amount in cash. He failed to do so and his application was rightly dismissed by the executing court. We, therefore, dismiss the appeal summarily.

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