K.C.Agrawal - (1.) THIS is a judgment debtors' revision under Section 115 of the Code of Civil Procedure against the judgment and order of the court 26-Rep.-1989 below dismissing the objection filed under Order XXI rule 90 of the Code of Civil Procedure (for short 'the Code') on the ground of non-compliance of clause (b) to proviso added by the Allahabad High Court to Order XXI rule 90 of the Code. The relevant proviso reads ; " That no application to set aside a sale shall be entertained- (a).......... (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........."
(2.) WHAT happened in this case was that in execution of the money decree obtained by the opposite party M/s. G. K. Brothers, Birhana Road, Kanpur, the house of the applicants was attached and sold. The applicants filed application under Order XXI rule 90 of the Code for setting aside the sale in 1981 and the same was registered as miscellaneous Execution Case No. 2 of 1981. But they did not deposit 12-1/2% (twelve and a half per centum) of the sale consideration, which was required under the High Court amendment. On April 17, 1982, the Civil Judge rejected the application on the ground that the security money was not deposited by the judgment- debtor. He ordered, "Case called out. Applicant is absent. D. H. is present. Auction-purchaser is present. Security also not deposited Application under Order XXI rule 90 is not maintainable, hence rejected." The applicants filed a restoration application, which was registered as Miscellaneous Case No. 93 of 1983. The same was allowed on December 15, 1986. December 5, 1987, was fixed for disposal of the application of the applicants under Order XXI rule 90 of the Code. On that date the court rejected the application for adjournment moved by the judgment-debtors. The court held that the applicants since had not complied with the condition precedent of depositing twelve and a half per centum of the sale consideration in cash or furnished security, the objection was not maintainable. The court below noted that although the application under Order XXI rule 90 of the Code was filed by the judgment-debtors in 1981, but the requirement of the proviso (b) to Order XXI rule 90 had not been complied with. Against this order, the present revision has been filed. The main argument of the learned counsel for the applicants was that since the proviso (b) to Order XXI rule 90 of the Code added by the High Court is inconsistent with Section 96 of the Code (Amendment Act, 1976) (Act No. 104 of 1986) the application of the applicants filed under Order XXI rule 90 of the Code could not be rejected on the ground of non-compliance of the conditions mentioned therein. Under Order XXI rule 90 a sale of immovable property in execution of a decree can be set aside on the ground of material" irregularity or fraud in publishing or conducting the sale provided he proves that he has sustained substantial injury by reason of such irregularity or fraud. The old rule 90 has been substituted by the present new one of the Code (Amendment Act, 1976). Sub-rule (1) of the present rule is exactly similar as the old sub-rule one. Except that the words 'of the purchaser' after the words 'the decree-bolder' in the present sub-rule are new. Under the old rule there was a conflict of decisions as to whether an auction-purchaser can apply to set aside a sale under the rule. On the recommendations of the Law Commission made in 27th report the words 'or purchaser' have been added to make it clear that auction-purchaser could also apply. In sub-rule (2) words 'in publishing or conducting it' have been added. Sub-rule (3) is new. It provides that no application to set aside a sale shall be entertained on any ground which the applicant could have taken on or before the date of the proclamation of sale. So far as the proviso (b) to Order XXI rule 90 is concerned it has been noted that it was another useful amendment by the Allahabad High Court in sub- rule (1) that the application to set aside a sale shall not be entertained unless the applicants deposit twelve and half per cent, of the same realised at the sale or furnishes such security as may be fixed by the Court (see 14 the Report adopted by 27th Report also).
(3.) ON the basis of Section 97 of the Code (Amendment Act) counsel urged that as the proviso (b) added by the Allahabad High Court in sub-rule (1) is consistent, therefore, the same stands repealed. Section 97 (1) of the Code reads thus : "Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. " The effect of Section 97 (1) is, in the words of Supreme Court itself as observed in Ganpati Giri v. Second Additional District Judge, Ballia, 1986 AWC 181 SC :- "The effect of Section 97 (1) is that local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the amending Act..." ;