JUDGMENT A. P. Srivastava, J. - This is a judgment-debtor's appeal against an order rejecting her objection under order XXI, R. 90, C.P.C. In execution of a decree obtained against the appellant by the first respondent immovable property was purchased by the second respondent. The appellant had thirty days' time to file an objection under order XXI, Rule 90 C.P.C. In view of a proviso to that rule added by this Court the objection under Rule 90 could not be entertained. "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. On the 13th December 1960, therefore the appellant applied that as she was not in a position to make a cash deposit she may be permitted to furnish security to the extent of Rs. 3,375, that being the twelve and half per cent of the amount of sale. She filed along with this application a security bond executed by one Mannu Singh and praying that security be accepted. In the security bond that was filed Mannu Singh, who had executed the bond, purported to mortgage his house described in the bond as security to the extent of Rs. 3,375. The date of the execution of the bond was the 13th December 1960. The bond was not registered and was also not executed in favour of any person. On the 14th December 1960 the decree-holder objected and contended that as the appellant was in a position to deposit the amount in cash her application for permission to furnish security in the place of cash deposit should be rejected. On the application made by the appellant office had also made a report pointing out that the security bond filed was not registered. The Court considered the appellant's application and the decree-holder's objection on the 15th December 1960 and passed an order permitting the appellant to file security to the extent of Rs. 3,375 and exempting her from depositing the amount in cash. The bond filed, however, was not accepted because the decree-holder wanted to file objections in respect of it.
The Court considered the appellant's application and the decree-holder's objection on the 15th December 1960 and passed an order permitting the appellant to file security to the extent of Rs. 3,375 and exempting her from depositing the amount in cash. The bond filed, however, was not accepted because the decree-holder wanted to file objections in respect of it. He was allowed two days' time to file objections and the case was directed to be put up for orders on the 19th December 1960. On the 16th December 1960 two applications were filed, one by the appellant and the other by Mannu Singh. In both these applications it was conceded that the bond filed needed correction and it was prayed that the bond may be permitted to be corrected by the addition of the words `in favour of Sri Ram Autar Misra, II Civil Judge, Kanpur and his successor-in-office' at the appropriate place in the bond. On the 17th December 1960 the appellant filed her application under Or. XXI, R. 90 and prayed for the setting aside of the sale. The application was admittedly within limitation on that date. On the same date the decree-holder filed an objection to the security bond and prayed that the same may be rejected. On the 19th December 1960 the decree-holder filed an objection to the applications for amendment made by the appellant and her surety and prayed that the applications for the amendment of the security bond should be rejected. No orders were passed on these applications. On the 19th December 1960 office pointed out certain defects in the application filed under R. 90 and on the 22nd December 1960 the appellant was required to remove those defects. The defects were removed and on the 4th January 1961 the application was registered and notices issued to the decree-holder and the auction-purchaser in respect of it fixing the 4th February 1961 as the date for hearing. On that date, i.e., the 4th February 1961, the auction-purchaser appeared and filed an objection praying that the judgment-debtor's application under R. 90 on the 17th December 1960 be rejected with costs.
On that date, i.e., the 4th February 1961, the auction-purchaser appeared and filed an objection praying that the judgment-debtor's application under R. 90 on the 17th December 1960 be rejected with costs. The objection was heard by a learned Civil Judge and by an order dated the 6th March 1961 the learned Judge accepted the preliminary objection raised on behalf of the decree-holder and the auction-purchaser and rejected the objection filed by the appellant on the ground that the proviso about security had not been complied with. The learned Judge held that as the security bond filed was unregistered it was a waste paper and the appellant could not, therefore, be said to have complied with the requirements of the proviso added by this Court to Or. XXI, R. 90. It is against that order that the appellant had filed the present appeal. 3. It is contended in support of the appeal that the appellant did everything which she could to comply with the proviso. She obtained the necessary permission and actually filed a bond. She made an application for removing a certain defect in the bond but as no orders were passed by the Court in respect of the applications the defect could not be removed. The bond was not given back to her for getting it registered. Had she been allowed to get it registered the bond would have become valid and effective from the date of execution. In any case she had never been directed to furnish security of immoveable property. In the circumstances the learned Civil Judge was not justified in rejecting the application on the ground that the proviso had not been complied with. 4. Under the proviso an application to set aside a sale could not be entertained unless either the requisite amount was deposited or security was furnished under the direction of the Court. According to Webster's New International Dictionary "entertainment" means `to receive and take into consideration, to admit, treat or make use of.' It was urged on behalf of the respondent that the word `entertain' had been used in the proviso to mean `admit' and the application under R. 90 could not even be filed by the appellant till the necessary deposit had been made or security furnished. We are not prepared to accept this interpretation.
We are not prepared to accept this interpretation. There is nothing in the proviso requiring the deposit to be made or the security to be furnished before making the application or simultaneously with it. With reference to an analogous provision in Section 17 of the Provincial Small Cause Courts Act it is well established that the deposit of the decretal amount or the furnishing of the security need not be made before the application for setting aside the decree is filed. It is enough if both the things are done before the period of limitation expires. As the proviso stands certain steps have to be taken in order to be able to comply with it. Thus if the applicant wants to deposit the amount he has to get the amount ascertained. The proviso itself does not fix the amount that is to be deposited. It only fixes the maximum limit. The amount can be any amount up to but not exceeding twelve and half per cent. of the sum realised by the sale. The judgment-debtor cannot himself fix the amount that has to be deposited. That can be done only by the Court. If the amount is not to be deposited but security has to be furnished the applicant has to obtain the directions of the Court fixing the nature of the security which has to be furnished. The applicant may also request the Court to dispense with the requirements of the clause altogether and if that is done it will not be necessary for him either to deposit the amount or to furnish the security. All this may take time. It does not appear to be intention of the proviso to prevent the filing of the application for setting aside the sale till all that has been done. The prohibition relates to the `entertainment' of the application, i.e., the consideration of it. Mere filing of the application will not be of any use. If the second proviso is not complied with the Court will refuse to consider it and reject it for the omission. The compliance with the proviso does not, therefore, appear to be a condition precedent for the filing of the application. The application may be filed, but the applicant will have in any case to comply with the proviso before the period for the filing of the application filed by law expires.
The compliance with the proviso does not, therefore, appear to be a condition precedent for the filing of the application. The application may be filed, but the applicant will have in any case to comply with the proviso before the period for the filing of the application filed by law expires. Otherwise he takes the risk of his application being thrown out as not entertainable. What is, therefore, required is that not only should the application for setting aside the sale be filed within time but the compliance with Cl. (b) of the rule should also be made within time. It is only when both these requirements are fulfilled that the application to set aside the sale can be entertained. 5. But what is to be done if though the applicant does everything in his power within time but because of some default or omission of the Court he is unable to comply with the proviso before the period of limitation expires? The rule that no one should suffer because of the fault of the Court will apply in that case and as held in Zafar Uddin Ahmad v. Madan Mohan, 1960 ALJ 678 the inherent powers of the Court will be utilised to set the wrong committed by the Court right and to prevent the party from suffering for no fault of his own. 6. In the present case before filing the application for setting aside the sale the appellant first sought to be exempted from the requirements of complying with the second proviso. That was not permitted. Her alternative request was that she should not be required to deposit the amount in cash but should be permitted to furnish security in respect of the same. This request of hers was granted and she was permitted to furnish security to the extent of Rs. 3,375. The learned Civil Judge did not, however, while passing the order dated the 15th December 1960 permitting the appellant to file security to the extent of Rs. 3,375, specify the nature of the security that was to be furnished. Thus he did not say whether the security has to be personal or whether it was to be the security of immovable property. The security bond was already on the record but the learned judge did not either accept it or reject it.
3,375, specify the nature of the security that was to be furnished. Thus he did not say whether the security has to be personal or whether it was to be the security of immovable property. The security bond was already on the record but the learned judge did not either accept it or reject it. The learned judge noted that the security bond had been filed but had not been registered. He did not direct that it should be registered. He also did not say that he would not accept it till it was registered. As the decree-holder wanted time to file objections he allowed two days' time for the same. It is not clear from the order as to what was the nature of the objections which the decree-holder wanted to file, but most probably he wanted to file objections to the form of the bond. The case was directed to be put up for orders on the 19th December 1960. In fixing that date the learned judge overlooked that the period of limitation that the appellant had for making her application for setting aside the sale was to expire on the 18th December 1960. On the 17th December 1960, however the appellant filed her application under R. 90. She had still time till the 18th to comply with the proviso. It appears to have been discovered by her as well as the surety on the 16th December 1960 that the form of the bond was defective and needed an amendment. Two applications were then made by her and her surety on that date, i.e. the 16th December 1960, for permission to correct the bond. These applications too were not disposed of before the 30 days' period of limitation expired. In fact, they were not disposed of at all and it was only when the application under R. 90 was considered on the 6th March 1961 that the learned judge held that the application was not maintainable because the proviso to R. 90 had not been complied with. 7. This is, therefore, a case in which the appellant is being made to suffer because of the omission of the Court itself.
7. This is, therefore, a case in which the appellant is being made to suffer because of the omission of the Court itself. If the appellant had within time sought the directions of the Court about the way in which the security was to be furnished but the necessary directions were not given to her, if she had filed a security bond within time but was not allowed to have the bond registered and no orders were passed within time on her application to have the bond corrected and the formal defects in it removed the appellant could not be made to suffer for these omissions. In exercise of its inherent powers the learned Civil Judge should have permitted the bond to be corrected and registered and then proceeded to consider the application under R. 90 on merits. 8. Learned counsel for the respondent urged that the bond filed was of no worth because immovable property was hypothecated in it and the bond was unregistered. He also stressed the fact that the appellant never applied in time to have the bond registered. It is true that a bond in which immovable property is hypothecated needs to be registered and without registration it is not enforceable but at the same time one cannot overlook the fact that a bond can be registered at any time and once it is registered registration dates back to the date of the execution and it becomes valid and effective from the date on which it was executed. If, therefore, the bond had been permitted to be registered it would have become effective from the date on which it was executed. But the learned Civil Judge never directed the appellant to furnish a registered security bond and did not even direct that the security should be personal. He only said that the security to the extent of Rs. 3,375 should be furnished. The direction given was vague and could not, strictly speaking, be complied with. The appellant cannot, therefore, be blamed if in the circumstances she did not make any application for having the bond registered. When registration was insisted upon she did make an application on the 27th February 1961 praying that she may be permitted to have the bond registered. 9.
The appellant cannot, therefore, be blamed if in the circumstances she did not make any application for having the bond registered. When registration was insisted upon she did make an application on the 27th February 1961 praying that she may be permitted to have the bond registered. 9. In the circumstances we think the appellant should not be made to suffer because proper orders were not made on her application filed under the proviso to R. 90 and the learned Civil Judge was, therefore, not justified in throwing her application out under R. 90 for non-compliance with that proviso. 10. We think the fair course in this case will be to set aside the order of the learned Civil Judge and to send the case back to him so that proper orders may be passed in respect of her application made under the proviso to R. 90 and she may be permitted to comply with the directions so given. If the directions are complied with within the time allowed by the learned Civil Judge the appellant will be deemed to have complied with the requirements of the proviso and her application for setting aside the sale will be entertained and considered on merits. If she fails to comply with those directions within the time allowed by the learned Civil Judge her application under R. 90 will fail and will not be entertained. We order accordingly. In the circumstances we leave the parties to bear their own costs of this appeal. The costs in the trial Court will abide the final result.