1969 (12) TMI 114

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....6 of 1956 in the court of the First Additional Civil Judge, Varanasi. Therein certain properties belonging to the judgment-debtor were sold. The appellant moved the executing court under Order 21, Rule 90, CPC to set aside the sale. His application was dismissed on the ground that he was not an interested party. Aggrieved by that order he went up in appeal to the High Court of Allahabad. The Hi....

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....discretion, fix except when the Court for reasons to be recorded dispense 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. Clause (b) of the proviso was added on J....

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....n. "entertain" found in the proviso refers to the initiation of the proceedings and not to the stage when the court takes up, the application for consideration. This; contention was rejected by the High Court relying on the decision of that court in Kundan Lal v. Jagan Nath Sharma AIR 1982 All 547. The same view had been taken by the said High Court in Dhoom Chand Jain v. Chaman-lal Gupta AIR 1902....

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.... the compliance of the proviso had to be made prior to the disposal of the application on merits. It proceeded on the basis that the compliance of the proviso is mandatory and as such the court is incompetent to permit the applicant to comply with the same, once the application has been disposed of on merits. In our judgment this view of the High Court is erroneous. Clause (b) of the proviso confe....