1. This is an appeal by the petitioner in the court below in an application under Order XXI, Rule 90 C. P. Code, to set aside the sale on account of certain material irregularities, and alleged fraud. The learned Second Assistant Judge of the City Civil Court, Madras, dismissed the application because the petitioner (appellant) defaulted to furnish security as demanded by the court under the first proviso to Order XXI, rule 90 C. P. C. The facts are practically admitted, and the appeal merely involves a simple question of the application of certain relevant legal principles to facts of this character.
2. What happened in the court below was this. The petitioner (appellant) had not furnished security, and the matter was before the court on 31-10-1957. On the adjourned date, there was a definite order made calling upon the appellant to furnish security in a sum of Rs. 5,000, and the proceedings were again adjourned to 16-11-1957. On that date, security was not furnished but the learned counsel for the decree-holder appeared, and took notice voluntarily, and desired to file a counter-statement. He was permitted to file this counter statement upon his voluntarily taking notice, and the statement was filed on 20-11-1957. .
It was then that the learned counsel for the judgment debtor (appellant) put forward the contention, which is also now advanced before me, that the court, in permitting the learned counsel for the decree-holder to file a counter when he had no locus standi to appear, was in effect admitting the application under Or. XXI, rule 90 C. P. C. Once the court admitted the application, it had no further, jurisdiction to call for security. This last proposition is not in dispute, and it is supported by the authority of a Division Bench of this court in Vaidyanatha Aiyar v. Indian Bank Ltd., : AIR1955Mad486 .
The argument is that whatever might have been the original intention of the court, and even if the court was not conscious that it was virtually defeating its own intention, by implication, when it permitted the learned counsel for the decree holder to appear and to file a counter, nevertheless the implication cannot be denied that this deprives the court of the further jurisdiction to call for security. The question is whether the court can, by the effect of a legal implication of this character, be presumed to have done what it consciously never intended to do.
3. The precise matter came up before King and Happell JJ., in Venkatalingam v. Rajagopala Venkatanarasimha : AIR1942Mad509 . The facts of that case were that in an application to set aside a sale in execution of a decree, the petitioner was ordered to furnish security on a certain date, when a draft security bond was tendered. Without testing the security, the court, presumably by inadvertence, issued notice to the opposite side which appeared and raised objections to the sufficiency of the security. The security was tested and found to be wholly inadequate, and the court dismissed the application for default in furnishing security. On an appeal against that order, this very same proposition was put forward that by issuing notice, the court must be deemed to have admitted the application, and thereby to have deprived itself of the jurisdiction to furnish security.
4. The learned Judges then observed : 'Where as in this case, we are able upon the facts to ascribe to the court a quite different intention when it issued the notice, then it would be absurd to hold that there is any principle of law by which the court should be deemed to have done what it consciously did not intend to do. It is clear therefore to us that in issuing notice, the court did not intend to deprive itself of the power of deciding whether the security to be eventually furnished by the petitioner was adequate or not.'
5. This authority precisely applies to the present facts, which are even stronger than the facts of the citation. In the present case, the record makes it clear beyond doubt that throughout the learned Judge intended to call for security and passed an order to that effect, which he desired to enforce, and was opposed to admitting the petition before the security had been furnished. The learned Judge permitted the learned counsel for the decree holder to appear and make some submissions when the latter had no locus standi, and without realising that such a step might, by legal implication, be construed as an implied admission of the very petition.
But the learned Judge cannot be presumed to have intended to have done something which he was consciously quite opposed to do. Consequently, I hold that the petitioner (appellant) was not absolved from the duty of furnishing security to thesatisfaction of the court in accordance with theorder, if he desired his application to be heard.Since he defaulted to do so, his application wasproperly dismissed. The appeal, therefore, failsand is dismissed with costs.