1939 (3) TMI 17

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....unsif as a miscellaneous case, and notices were served on the opposite party. On 14th October 1936, the petitioner Brij Behari Lal deposited in Court a sum amounting to ½ per cent, of the sale proceeds, and on 25th May 1937, the application came on for hearing before the learned Munsif. The opposite parties took a preliminary objection that as no sum was deposited with the application to set aside the sale as required by the Rule within 30 days from the date of the sale, the application was barred by time. The learned Munsif upheld this preliminary objection and on appeal the learned District Judge affirmed the decision of the Court below and dismissed the application. It has been contended before this Court that in dismissing the application the Courts below were clearly wrong and that this is a case in which revision lies. As I have stated, the application to set aside the sale was one under Order 21, Rule 90, Civil P.C. 2. This Rule has been amended by this Court, and the amended Rule, under which the application was made, is in these terms: (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to sh....

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....piry of the period of thirty days from the date of sale. It was urged by the opposite parties in the Courts below that where the deposit had not been dispensed with by the Court, an application accompanied by no deposit was no application at all within amended Order 21, Rule 90, and that the defect in the application could not be cured by a deposit made on 14th October 1936, because an application on that date was clearly barred by limitation. 4. As I have stated, the Courts below accepted this contention and dismissed the application. Counsel for the petitioner has contended before us that the application to set aside the sale in this case was within time and should have been decided on the merits. Alternatively, he has. contended that the amendment made by this Court to Order 21, Rule 90, Civil P.C., requiring a deposit is ultra vires the rulemaking power of the Court and therefore void. If Proviso (i)(b) which is part of the amendment made by this Court is void, then clearly the application was within time, as the Rule as it originally stood required no deposit to be made with the application. 5. In the first place, I shall deal with the contention that the present applica....

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....t must deposit the amount at the time he makes his application or do they mean that at some stage or another, unless the Court dispenses with the deposit, a sum must be deposited with the application which has already been made? The learned District Judge appears to have thought that Proviso (i)(b) is very similar to the provisions of the Proviso to the amended Section 17(1), Provincial Small Cause Courts Act. That Proviso is in these terms: Provided that an application for an order to set aside a decree passed ex parte, or for a review of judgment, shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. 8. By the terms of this Proviso it is clear that the deposit must be made at the time the application is presented, because it is expressly stated that such must be the case. Further, it is expressly provided that if the applicant wishes to give security instead of depositing money, a previous applicatio....

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....fication for this view as there is nothing in the Rule to suggest that admissions must take place within the period of limitation. Further, the wording of the substituted Proviso in no way suggests that in the event of no deposit being made at the time the application is presented, the application should be accompanied by a further one to dispense with the deposit or for leave to deposit a lesser sum or other security. The view of the learned Munsif that admission must take place within the period of limitation is further open to a very grave objection. The point of time when the application is admitted depends upon the Court, and if admission must be within limitation, an applicant might find his application dismissed by reason of the failure of the Court to deal with it within 30 days of the sale. Such can never have been the intention of the framers of this Rule. The learned District Judge appears to have thought that the substituted Proviso contemplated a deposit of ½ per cent, in every case at the time when the application to set aside the sale was presented. In his view, if the applicant desired that the deposit should be dispensed with or that he should be permitted t....

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.... must be deposited within limitation. The substituted Proviso is complied if such is made before actual admission and the date of admission cannot be governed by the Limitation Act. As I have stated earlier in this judgment, this application was registered as a miscellaneous case immediately upon presentation, and it has been argued that rightly or wrongly the application was admitted and that it was not open to the learned Munsif at a later stage to question his own order. There is some force in this contention; but it is unnecessary to decide the point because at a later stage the trial Court actually accepted a deposit of ½ per cent on 10th October 1936, the present petitioner applied for leave to deposit a sum equal to ½ per cent, of the sale proceeds and the Court issued a chalan and the money was actually deposited. 14. Even if the original admission of this application could not be justified, the acceptance of this deposit and the subsequent proceedings clearly show that the application was properly admitted at the date of the deposit and the Court was bound thereafter to adjudicate upon it. For the reasons which I have given, II am satisfied that where n....