R.S. Pathak, J. - (1.) THIS is a judgment -debtor's appeal against an order of the learned Civil Judge, Aligarh, dismissing his application for setting aside an execution sale.
(2.) IN execution of a decree against the Appellant, the executing court auctioned the Appellant's immoveable property on 6 -5 -1958. On 28 -5 -1958 the Appellant filed an application Under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the sale. The decree -holder Respondent filed a reply on 26 -7 -1958 opposing the application and thereafter a similar reply was filed by the auction purchaser Respondent. On 8 -11 -1958 the application Under Order 21, Rule 90 was dismissed in default, but was restored on 6 -2 -1960. On 27 -4 -1960 the Appellant applied for permission to file a report and a map in support of his application. Permission was granted on 30 -4 -1960. About the same time, he applied for permission to make a deposit or furnish security as required by Clause (b) of the Proviso to Sub -rule (1) of Rule 90. The learned Civil Judge made an order on 23 -7 -1960 declining to grant permission on the ground that the Appellant had not made any deposit nor moved the Court for fixing its amount at the time when he filed the application Under Order 21, Rule 90 and more than two years had elapsed since then. By the same order, the learned Civil Judge rejected the application Under Order 21, Rule 90 as not maintainable. The instant appeal has been preferred against the order.
(3.) THE appeal came on for hearing originally before a Division Bench consisting of Jagdish Sahai and W. Broome, JJ. Being of the opinion that a conflict existed between the decisions of this Court on the point, they have referred the case to a larger Bench. That is how the case comes before us. Order 21, Rule 90 was amended by this Court with effect from 1 -6 -1957. The amended provision reads: Rule 90(1). - -Where any immoveable property has been sold in execution of a decree, the decree -holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it: 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 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. (2) Where such application is rejected the Court may award such costs to the decree holder or the auction -purchaser or both as it may deem fit and such costs shall be the first charge upon the security referred to in Clause (b) of the proviso, if any. In their construction of Clause (b) of the Proviso the decisions of this Court have shown considerable divergence. In Bawan Ram v/s. Kunj Behari Lal, 1960 AWR 434 a learned Single Judge held that the requirements of Clause (b) must be satisfied either at the time when the application for setting aside the sale is filed or in any event before the expiry of the period of limitation for making such application. There was no power in the Court, he pointed out, to extend the period of limitation for filing the application and therefore if compliance with Clause (b) was not made within that period the application had to be rejected as invalid. In the next case, Dhoom Chand Jain v/s. Chaman Lal Gupta, 1962 AWR 585 Desai, C.J. and Dwivedi, J. observed that no duty lay upon the Court to fix the amount of deposit or of security of its own accord but pointed out that although it could not refuse to take an application even though not backed by a deposit or security it could not judicially consider it and while it was expected that the Court would ordinarily give an opportunity to the Applicant to comply with Clause (b) it would reject the application if there was no compliance. This was followed by the view expressed by Mukerji and Uniyal, JJ. in Kundan Lal v/s. Jagan Nath Sharma, 1962 AWR 500 where disagreeing with the statement of the law in Bawan Ram's case (supra) they held that compliance with Clause (b) may be made at any time before the application Under Order 21, Rule 90 comes on before the Court for decision on merits. The next case, in order of time is Dullo v/s. Devi Charan, 1962 AWR 697. This decision was rendered by Srivastava and Katju, JJ. They adopted the view that although it was not imperative that the deposit should be made or the security should be furnished before or simultaneously with the making of the application Under Order 21, Rule 90 it was necessary that that should be done before the expiry of the period of limitation for making the application. It appears from the judgment that the attention of the learned Judges was not invited to the decisions in Dhoom Chand Jain's case (supra) and Kundan Lal 's case (supra). In Haji Rahim Bux v/s. Firm Samiullah and Sons : AIR 1963 All 320, the controversy was considered in separate but concurring judgments by Desai, C.J. and Singh, J. They declared that the question of fixing the amount or the security would arise only after the application Under Order 21, Rule 90 was presented to it, that the period within which compliance should be effected was not the period of limitation for making the application Under Order 21, Rule 90 but such period as was fixed by the Court in that behalf and that such compliance must be had before the application was considered on merits. The same view was taken by Asthana, J. in Mahavir Singh v/s. Gauri Shankar : AIR 1964 All 289 and he described the observations to the contrary in Dullo's case (supra) as obiter. Finally, we reach the decision in Smt. Jaggi v/s. Ram Autar, 1965 ALJ 1135, where Bishambhar Dayal and Seth, JJ. reiterated the position that an application Under Order 21, Rule 90 could be entertained if the amount was deposited or the security furnished before the final hearing and disposal of the application.;