Skip to content


Legu Venkataramanayya Setty and anr. Vs. Gunda Subbayya Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 1546 of 1958
Judge
Reported inAIR1962AP175
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 90
AppellantLegu Venkataramanayya Setty and anr.
RespondentGunda Subbayya Chetty and ors.
Appellant AdvocateP. Krushna Reddy, Adv.
Respondent AdvocateK. venkataramaiah, Adv.
Excerpt:
property - security - order 21 rule 90 of code of civil procedure, 1908 - court directed judgment debtor (jd) to furnish third party personal security to set aside auction sale - successor judge directed jd to furnish security of immovable property to set aside sale - order challenged - successor judge not entitled to review order of his predecessor without giving cogent reasons - held, order issued by successor judge without considering order of his predecessor untenable in law. - - 145 of the civil procedure code effectively provides the means for realising any deficit discovered on re-sale......is contemplated to be furnished by a judgment-debtor while filing an aplication to set aside a sale is security of immoveable property. he argued that in the first proviso of that rule the word 'security' is found and cannot be taken to imply the furnishing of a surety bond. secondly, he contended that in the second proviso, it is contemplated that when a deficit on a re-sale is found, the security must be proceeded against to realise the deficit and that therefore the enforcement of the liablity of a surety bond is not thought of, but i am unable to agree with this contention of the learned counsel. it is not possible having regard to the etymoloigical sense of the word 'security' employed in the civil procedure code, that any another paticular meaning as if 'security' is a term of.....
Judgment:
ORDER

(1) This revision petition is directed against the orders of the Subordinate Judge, Kurnool dated 24th June 1957 which called upon the petitioner to furnish security of immoveable property in order that the petitioner's application to set aside the sale held on 25-11-1957 could be proceeded with by the Court. The order of the lower court is attacked on behalf of the petitioner on the ground that the learned Subordinote Judge ignored the earlier order dated 24-1-1958 of the same court calling upon the petitioner to furnish third party personal security and that therefore the latter order dated 24-6-1958 is without jurisdiction.

(2) The short facts which need be mentioned are the following: As against the petitioner. a decreewas obtained by the respondent in O. S. No. 54 of 1954. The decree-holder proceeded to execute the decree and brought the properties of the petitioner to sale in E. P. No. 92 of 1956 and the decree-holder knocked the properties at the auction in his favour after obtaining the permission of the Court for Rs. 20,000/ while the decree in his gavour was for Rs. 24,000/ and odd. The present petitioner there upon filed E.A. C.F.R. No. 8289/7 on 11-12-1957 under Order XXI Rule 90 C.P.C toset aside the sale alleging material irregularities in the conduct of the sale. The lower court, as could be gathered from the notes made on the execution application C.F.R. 8289/7 heard the arguments on 24-1-1957 and passed an order that

'the petitioner is directed to give party personal security within 10 days'.

It appears the time for giving the surety was extended from time to time. It also transpires that in pursuance of this order, E.A. No. 26 of 1958 dated 11-2-1958 was filed by the petitioner requesting the Court to accept the bond of his security, one Narellapalli Ramaswami, and that this application came upfor orders before the Court on 24-6-1958. By then the learned Subordinate Judge who passed the orders on 24-1-1957 seems to have been transferred and another has come in his place. The latter Subordinate Judge, however, has passed a brief order which is the subject-matter of this revision. It is in the following words:

'24-6-1958 for furnishing security of immoveable property 7-7-1958'.

(3) No reasons are given why a fresh order of this kind should be made by the learned succeeding Subordinate Judge. It is not also possible to find from this order whether he acquainted himself with the earlier order made by his predecessor on 24-1-1958. Thereafter the lower court has been granting time for furnishing immoveable property as security. The petitioner, however, chose to question that order and therefore has not till now furnished that security.

(4) It would thus be seen that the petitioner has, in compliance with the earlier order dated 24-1-1958 of the lower court, filed an application for acceptance of the bond of the surety and that without passing any orders thereon, a demand for furnishing immoveable property as security has been made.

(5) Mr. K. venkataramaiah for the 1st respondent urges that it is not clear whether the earlier order upon which much reliance is placed by the other side has at all been made by the lower court. But I am unable to see any force in this contention as the learned counsel for the petitioner has produced a certified copy of the notes made in the 'B' diary pertaining to E. A. C.F.R. No. 8289/7. That contains the text of the order dated 24-1-1958. It is therefore more than clear that the lower court passed an order directing the petitioner to furnish third party personal security. The succeeding judge is not therefore entitled to review the order unless it must be for sufficient reasons which must be put on record. On the other had, when he ignores the order of his predecessor, his latter order is vitiated as without jurisdiction. I, therefore, find even on this simple ground the order of the lower court dated 24-6-1958 is untenable and has to be set aside.

(6) Mr. K. venkataramajah for the 1st respondent also urged that having regard to the language of Rule 90 of Order XXI C.P.C. what is contemplated to be furnished by a judgment-debtor while filing an aplication to set aside a sale is security of immoveable property. He argued that in the first proviso of that Rule the word 'security' is found and cannot be taken to imply the furnishing of a surety bond. Secondly, he contended that in the second proviso, it is contemplated that when a deficit on a re-sale is found, the security must be proceeded against to realise the deficit and that therefore the enforcement of the liablity of a surety bond is not thought of, but I am unable to agree with this contention of the learned counsel. It is not possible having regard to the etymoloigical sense of the word 'security' employed in the Civil Procedure Code, that any another paticular meaning as if 'security' is a term of art could be implied. In Stroud's judicial Dictonary the follwing meaning is given:

'Security: (1) A 'security'' speaking generally, is anything that makes the money more assured in its payment or more readily recoverable; as distinguished from e.g., a mere I.O.U. which is only evidence of debt'. It does not therefore exclude the guarantee which can be provided by any surety. In fact, the same Dictionary adds further on 'security given by the borrower' and may mean a third party's guarantee provided by a borrower and may be 'security given by the borrower'. Of course this has been with reference to the English Money-lenders Act, 1927 (17 and 17 Geo, 5, c 21 S. 6) but could be said to be of general application also. There is yet another indication which can be called out from the manner in which the term 'security' has been employed in the civil Procedure Code itself. That word occurs with reference to the proceedidngs under Order XXXVIII Rules 2 and 3, and also in the matter of furnishing sureties when property is distrained or a person is arrested. In that context also, the word 'security' has been used as synonymous with 'surety' and therefore, in my view the meaning that has to be given to the word 'security' should be taken to be comprehensive enough to include a 'surety' or atleast not to exclude it.

A further contention of the learned counsel that a difficulty has necessarily to be experienced in the matter of the enforcement of the bond of a surety lacks substanace as Sec. 145 of the Civil Procedure Code effectively provides the means for realising any deficit discovered on re-sale. I am therefore of the view that these points urged by the learned counsel in support of the second order of the lower court are unsustainable, and therefore have to be rejected.

(7) In this connection, a reference to the decision in Foulkes v. Suppan Chettiar AIR 1945 Mad 13 : 1944-2 Mad L. J. 205 may be usefully made. There at page 14, a Division Bench of the Madras High Court consisting of King and Horwill, JJ. were considering the nature of the order that could be passed with reference to the first proviso to Rule 90 of Order XXI. They construed that Rule as meaning that the Court granted the option of taking one of three courses. They are stated to be either it (the Court) may demand no security at all; or it may demand the deposit or money; or it may call for security in some other form. The mention therefore of 'security' in some other form' does not necessarily make out that it is meant to be security of immoveable property only. It would comprise in my view the furnishing of the security by surety too.

(8) In the result, this revision petition is allowed with costs. The order of the lower court dated 24-6-1958 is set aside. The lower court is directed to proceed to consider why the bond furnished by the surety on behalf of the petitioner should not be accepted.

(9) Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //