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1965 DIGILAW 391 (ALL)

Jaggi v. Ram Autar

1965-09-24

BISHAMBHAR DAYAL, D.D.SETH

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JUDGMENT B. Dayal - This revision has been referred to this Bench for deciding the following question: "Can an objection under Order XXI, Rule 90, Civil Procedure Code be entertained if the amount is deposited or the security furnished as contemplated by the proviso to the above rule before the final hearing and disposal of the objection ?" 2. The facts which have given rise to the present revision may shortly be stated as follows. The property under attachment in execution of the decree was auctioned on 14th April, 1960. On 12th May, 1960 an application for setting the sale under Or. XXI, Rule 90, Civil Procedure Code was filed. On 19th May, 1960 an application was also filed for the directions of the court regarding the security to be furnished in pursuance of the second proviso to the rule mentioned above. On the next day an order was passed directing that security be furnished. The security which was furnished was ultimately accepted on 25th May, 1960. The objection under Order XXI, Rule 90, Civil Procedure Code came up for hearing on 24th October, 1960 when the Executing court held that the security not having been in furnished either with the application for setting aside the sale or within thirty days from the date of the sale, the application for setting aside the sale could not be entertained and dismissed the same. Against that order the present revision has been filed and in those circumstances the question which has been referred to this Bench has to be considered. 3. The matter has been the subject of consideration before four Division Benches of this Court by now. The first out of these four cases is Kundan Lal v. Jagan Nath Sharma, 1962 A.L.J. 574. The learned Judges who decided the case came to the conclusion that in the context in which the phrase 'no application to set aside the sale shall be entertained' has been used the word 'entertained' cannot mean the same thing as 'filed'. They consider, ed Cl. (a) of the proviso along with Cl. The learned Judges who decided the case came to the conclusion that in the context in which the phrase 'no application to set aside the sale shall be entertained' has been used the word 'entertained' cannot mean the same thing as 'filed'. They consider, ed Cl. (a) of the proviso along with Cl. (b) and it was obvious when the two clauses were read together that an application for setting aside the sale on any ground which could not be taken at the time when the sale proclamation was drawn up could only be rejected after the application had been received in court and had been considered by the Court. Therefore, the objection under Cl. (b) also that security as required by the proviso has been furnished or not can only be considered and the application rejected on that ground after the application has been received and the court has applied its mind. It cannot, therefore, mean that no application can be filed unless the security is furnished. The learned Judge also considered the dictionary meaning of the word 'entertained' and came to the conclusion that "A court hearing an application under Rule 90 of Or. XXI, Civil Procedure Code can only be said to entertain the application when it is actually disposing of the application on the merits." It was, therefore, held by that Bench that an application made at first without furnishing any security was a valid application if the security was (furnished by the time the application was finally heard on merits. 4. The next case Dhoom Chand Jain v. Chaman Lal Gupta, 1962 A.L.J. 729 was again a Division Bench case. The learned Judges in this case also considered the dictionary meaning of the word 'entertained' as 'to deal with' or 'to admit to consideration.' In view of Cl. (a) they also held that the word "entertained" can only mean 'to admit to consideration' and held that in its application to Cl. (b) it should have the same meaning. They came to the conclusion "Accordingly, while the court cannot refuse to take an application which is not backed by deposit or security, it cannot judicially consider it. It is expected that the Court would ordinarily give an opportunity to the applicant to comply with Cl. (b), and would reject the application if Cl. (b) were still not complied with." 5. It is expected that the Court would ordinarily give an opportunity to the applicant to comply with Cl. (b), and would reject the application if Cl. (b) were still not complied with." 5. This matter again came up for consideration in Dullo v. Devi Charan, 1962 A.L.J. 759. Unfortunately before this Division Bench the two previous cases mentioned above were not cited. The learned Judges who decided this case also, after considering the dictionary meaning of the word 'entertainment' held "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 ... 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...... All this may take time. It does not appear to be the intention of the proviso to prevent the filing of the application for setting aside the sale till all that has been done. The prohibition related to the 'entertainment' of the application i.e., the consideration of it." Their Lordships, however, went one saying "The application may be filed, but the applicant will have in any case to comply with the proviso be. fore the period for the filing of the application fixed by law expires." It is this remark of the learned Judges which has created conflict with the two previous cases mention. ed above. The proviso itself does not fix any limitation of time within which the security has to be furnished. All that is said is that the application shall not be entertained unless the proviso has been complied with. The plain meaning of the rule, therefore, is that the pro. viso must be complied with by the time the application is heard on merits and disposed of. We are, therefore, unable to agree with the rider added by the learned Judges in Dulloo's case. It would have been necessary to send the matter for consideration of a Larger Bench, but we find that their Lordships of the Supreme Court have had occasion to consider the same term used in the Motor Vehicles Act 1939 The Samrath Transport Co. It would have been necessary to send the matter for consideration of a Larger Bench, but we find that their Lordships of the Supreme Court have had occasion to consider the same term used in the Motor Vehicles Act 1939 The Samrath Transport Co. (P) Ltd. v. The Regional Transport Authority, Nagpur and others, A.I.R. 1961 S.C. 93. In that case the question was regarding the interpretation of the tenn 'refuse to entertain.' Section 68-F(2) of the Motor Vehicles Act provided that an application for permit by any other class of persons than those covered by the Scheme could be refused. In that particular case an application for permit had been made before the Scheme had been made, but the Scheme had become applicable before the application came up for consideration and their Lordships held that the words 'refuse to entertain' in Section 68-F (2) can only mean that the authority cannot dispose of the application on merits but can reject it as not maintainable. In view of this pronouncement, we think that it is no more necessary to refer this matter to a Larger Bench. The view taken in the two earlier cases lays down the good law and the phrase "no application-shall be entertained" only means that the court cannot dispose of it on merits but can only reject it as not maintainable when it comes up for final hearing. 6. The matter came up again be fore a Division Bench of this Court in Haji Rahim Bux v. Haji Sanaullah and Sons, 1963 A.L.J. 204. In this case also the view taken by the earlier two Division Benches was accepted although Dulloo's case was not referred to but the opinion of the Supreme Court quoted above was taken into consideration and it was held that the security required by Cl. (b) of the proviso need only be furnished by the time the application came up for final disposal. 7. In view of these Authorities and the principle laid down thereunder with which we respectfully agree, we answer the question referred to us as follows: "An objection under Or. XXI, Rule 90, Civil Procedure Code can be entertained if the amount is deposited or the security is furnished as contemplated by the proviso to the above Rule before the final hearing and disposal of the objection." 8. XXI, Rule 90, Civil Procedure Code can be entertained if the amount is deposited or the security is furnished as contemplated by the proviso to the above Rule before the final hearing and disposal of the objection." 8. With this saver the file may be sent back the learned Single Judge.