GUNTURU SEETA RAMANJANEYULU, MINOR BY MOTHER AND GUARDIAN SEETAMMA Vs. VISHNUBHOTLA RAMAYYA

JUDGEMENT

(1.) On the 9 of May, 1934, the first respondent obtained a money decree in the Court of the District Munsif of Masulipatam against the third respondent and his son, the appellant, who is a minor. So far as the appellant was concerned, the decree was limited to his share in the family property and the assets of the estate of his-deceased grandfather in his hands. On the 15 of March, 1937, 19.26 acres of land were sold by the Court in execution of this decree. This land had Seen attached by the decree-holder on the ground that it represented joint family property. The second respondent became 4he purchaser on the 14 April, 1937. The appellant then filed an application in execution proceedings asking that the sale be set aside. He asserted that the property sold was his self-acquired property, that no notice had been issued to him as required by Order 21, Rule 22 of the Civil P. C. and that there had been material irregularity in the publication of the sale, the result of which was that the property had been sold at considerably less than its real value. This application purported to be made under the provisions of Secs.47 and 151 and Order 21, Rule 90 the Code of Civil Procedure. The Court has not been informed of the reason for invoking Section 151, but it is said that Section 47 was invoked because under that section the appellant was entitled to an inquiry into his allegations that the property belonged to him and that the sale was bad by reason of notice not having been issued under Order 21, Rule 22, Order 21, Rule 90 applied in so far as the appellant sought to obtain the setting aside of the sale on the ground of material irregularity in its publication. The petition was not in order and it was returned to the appellant to remedy the defect. This was done and the petition was re-presented on the 21st June, 1937. On the 26 June, 1937, the Court ordered the appellant to enter into a security bond in the amount for which the property had been sold, namely, Rs. 1,450, and directed that the security bond should be filed by the 6 July, 1937. In requiring security to be furnished the Court acted under the provisions of Order 21, Rule 90. It is riot disputed that before this order was passed the appellant had an opportunity of being heard. The security was found to be unsatisfactory, and on the 19 August, 1937, the Court ordered the appellant to deposit in Court the amount in cash if he wished to proceed with his application. The appellant failed to deposit the amount within the time allowed by the Court - the time had been, extended to the 23 September, 1937 - and in consequence the District Munsif dismissed his application. The appellant then appealed to the District Judge of Kistna. The District-Judge, while agreeing with the dismissal of the application for default so far as the application related to Order 21, Rule 90, pointed out that the Court should nevertheless have proceeded with the application so far as it came under the provisions of Section 47, but instead of directing the District Munsif to hear and decide that part of the application, the District Judge indicated that the proper course would be for the appellant to file a separate application under Section 47 and limit it to his allegations that the property was self-acquired and that the sale was bad because of the failure to give notice under Order 21, Rule 22. The appellant has now appealed to this Court with regard to (a) the dismissal of his application for default in making the required deposit and (b) the requirement of the District Judge that he should file a separate application in so far as he claims under Section 47.

(2.) It has been accepted by the learned advocate for the second respondent, who alone is concerned with this appeal, that the District Judge should not have directed the appellant to file a fresh application under Section 47, and to that extent he agrees that the appeal should be allowed. But he says that no second appeal lies from that part of the decree which relates to the dismissal of the application for failure to find security under Order 21, Rule 90. That contention must be accepted. A second appeal will not lie on that question, although we think that the present appeal so far as it relates to the provisions of Order 21, Rule 90 may be treated as an application in revision, because, if the District Munsif had no power to require security to be given, his insistence on it would amount to a wrongful exercise of jurisdiction. Therefore we will proceed to treat the rest of the appeal as an application for revision.

(3.) At the time when the District Munsif required the appellant to furnish security, Order 21, Rule 90, as amended by this Court read as follows: Where any immovable 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 he sale on the ground of a material irregularity or fraud in publishing or conducting it: Provide of that the Court may, before admitting the application, call upon the applicant either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or that realized by the sale, whichever is less, or, to deposit such amount in Court; Provided also that the security furnished or the deposit made as afore- .said, shall be liable to be proceeded against only to the extent of the deficit on a re-sale of the property already brought to sale; 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.