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Sulekha Khatun and ors. Vs. United Bank of India Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 190 of 1966
Judge
Reported inAIR1967Ori84; 33(1967)CLT775
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 90(1)
AppellantSulekha Khatun and ors.
RespondentUnited Bank of India Ltd. and anr.
Appellant AdvocateP.K. Sengupta and ;R.K. Mohanty, Advs.
Respondent AdvocateA.K. Roy, Adv. for No. 2
DispositionPetition allowed
Cases ReferredGordhan Das v. Governor
Excerpt:
.....1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - under the proviso, the application for setting aside the sale shall not be admitted unless the conditions prescribed therein are satisfied......making the deposit. on 13-1-65 the petitioners filed an application for allowing them to furnish property security, the decree-holder and the auction-purchaser filed objections on 2-7-66 the learned subordinate judge passed the following order:'heard counsel on the amendment petition and the petitioner's petition dated 13-1-66 for furnishing property security. the amendment petition is allowed subject to limitation to be considered at the hearing. the petition for property security is dismissed.amend the cause title and the register. thepetitioners shall furnish cash security ofrs. 5000 xx xxx xxx xx xxthe civil revision has been filed against thisorder 2. the only point urged by mr. misra is that the learned subordinate judge acted in the exercise of his jurisdiction illegally and.....
Judgment:
ORDER

G.K. Misra, J.

1. Only material facts are stated hereunder. Petitioner 1 is the mother guardian of minor petitioners 2 to 4. Opposite party 1 is the decree-holder and opposite party 2 is the auction-purchaser. The sale of the disputed property belonging to the petitioners took place on 17-11-66. On 16-12-65 the petitioners filed an application under Order 21, Rule 90, Civil Procedure Code, for setting aside the sale. As they had not deposited the 12 1/2 per cent of the sum realised by the sale, they were called upon by 23-12-65 to deposit the sum and to explain how the application was maintainable without the deposit. On 5-1-66 the petitioners filed an application for extension of time for making the deposit. On 13-1-65 the petitioners filed an application for allowing them to furnish property security, The decree-holder and the auction-purchaser filed objections On 2-7-66 the learned Subordinate Judge passed the following order:

'Heard counsel on the amendment petition and the petitioner's petition dated 13-1-66 for furnishing property security. The amendment petition is allowed subject to limitation to be considered at the hearing. The petition for property security is dismissed.

Amend the cause title and the register. Thepetitioners shall furnish cash security ofRs. 5000 xx xxx xxx xx xx

The Civil Revision has been filed against thisorder

2. The only point urged by Mr. Misra is that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally and with material irregularity in rejecting the application for furnishing property security without assigning any reasons and, as such, the impugned order cannot be sustained. The contention necessitates an examination of Order 21, Rule 90, C. P. C. The Rule, as amended by the Patna High Court, has been adopted by the Orissa High Court. The Rule with the amendment so far as relevant may be quoted-

90. (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it.

(i) Provided that no application to set aside a sale shall be admitted.

(a) x x x x x

(b) unless the applicant deposits such amount not exceeding 12 1/2 per cent of the sum realised by sale or such other security as the Court may in its discretion fix, unless the Court, for reasons to be recorded, dispenses with the deposit.

3. Under Proviso (i) (b), by the time the application under Order 21, Rule 90 is to be admitted, the applicant is to deposit an amount not exceeding 12 1/2 per cent of the sum realised by the sale as the Court may in its discretion fix. Thus 12 1/2 per cent is the maximum. The Court may in its discretion fix any sum less than 12 1/2 per cent, or accept any security other than deposit in Court. When such wide discretion is given to the Court, it must be judiciously exercised. The Court would apply its mind to the facts on the basis of which me applicant makes a prayer for depositing a lesser sum or for furnishing security and t6 the objections of the decree-holder and the auction-purchaser. It follows as a logical corollary that reasons must be assigned as to why a lesser sum is not fixed or security is not accepted.

4. Mr. Palit, however, contends that the Rule specifically lays down that the Court is to record reasons only when it would dispense with the deposit and not otherwise. The contention is unsound. Even in the case of the first two alternatives the Court would make the determination in its discretion. In Rex v. Wilkes, (1770) 4 Burr 2527 Lord Mansfield observed as follows:

''Discretion when applied to a Court of Justice means sound discretion guided by law. Tt must be governed by rule not humour; it must not be arbitrary, vague and fanciful, but legal and regular.

This dictum was followed with approval in AIR 1952 Punj 103 (FB), Gordhan Das v. Governor-General. Thus the word 'discretion' itself implies vigilance, circumspection and care. Where the Legislature concedes wide discretion, it imposes a heavy responsibility. Mr. Palil therefore is not correct in saying that the Rule does not require reasons to be recorded in the case of the first two alternatives.

5. It need hardly be stated that the deposit or the security need not accompany the application. Under the Proviso, the application for setting aside the sale shall not be admitted unless the conditions prescribed therein are satisfied. It does not prescribe that either the deposit or the security would accompany the application. If the conditions are performed by the time the application is considered for admission, the application would be in order.

6. For reasons discussed, the impugned order cannot be supported and is set aside. The case is remitted with a direction that the application for furnisihng security or for fixing a lesser sum would be disposed of in accordance with law and the observations made above.

7. In the result, the Civil Revision isallowed. Parties to bear their own costs.


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