Alfred Henry Lionel Leach, C.J.
1. On the 9th of May, 1934, the first respondent obtained a money decree in the Court of the District Munsif of Masulipatam against the third respondent and his son, the appellant, who is a minor. So far as the appellant was concerned, the decree was limited to his share in the family property and the assets of the estate of his-deceased grandfather in his hands. On the 15th of March, 1937, 19.26 acres of land were sold by the Court in execution of this decree. This land had Seen attached by the decree-holder on the ground that it represented joint family property. The second respondent became 4he purchaser on the 14th April, 1937. The appellant then filed an application in execution proceedings asking that the sale be set aside. He asserted that the property sold was his self-acquired property, that no notice had been issued to him as required by Order 21, Rule 22 of the Code of Civil Procedure and that there had been material irregularity in the publication of the sale, the result of which was that the property had been sold at considerably less than its real value. This application purported to be made under the provisions of Sections 47 and 151 and Order 21, Rule 90 the Code of Civil Procedure. The Court has not been informed of the reason for invoking Section 151, but it is said that Section 47 was invoked because under that section the appellant was entitled to an inquiry into his allegations that the property belonged to him and that the sale was bad by reason of notice not having been issued under Order 21, Rule 22, Order 21, Rule 90 applied in so far as the appellant sought to obtain the setting aside of the sale on the ground of material irregularity in its publication. The petition was not in order and it was returned to the appellant to remedy the defect. This was done and the petition was re-presented on the 21st June, 1937. On the 26th June, 1937, the Court ordered the appellant to enter into a security bond in the amount for which the property had been sold, namely, Rs. 1,450, and directed that the security bond should be filed by the 6th July, 1937. In requiring security to be furnished the Court acted under the provisions of Order 21, Rule 90. It is riot disputed that before this order was passed the appellant had an opportunity of being heard. The security was found to be unsatisfactory, and on the 19th August, 1937, the Court ordered the appellant to deposit in Court the amount in cash if he wished to proceed with his application. The appellant failed to deposit the amount within the time allowed by the Court - the time had been, extended to the 23rd September, 1937 - and in consequence the District Munsif dismissed his application. The appellant then appealed to the District Judge of Kistna. The District-Judge, while agreeing with the dismissal of the application for default so far as the application related to Order 21, Rule 90, pointed out that the Court should nevertheless have proceeded with the application so far as it came under the provisions of Section 47, but instead of directing the District Munsif to hear and decide that part of the application, the District Judge indicated that the proper course would be for the appellant to file a separate application under Section 47 and limit it to his allegations that the property was self-acquired and that the sale was bad because of the failure to give notice under Order 21, Rule 22. The appellant has now appealed to this Court with regard to (a) the dismissal of his application for default in making the required deposit and (b) the requirement of the District Judge that he should file a separate application in so far as he claims under Section 47.
2. It has been accepted by the learned advocate for the second respondent, who alone is concerned with this appeal, that the District Judge should not have directed the appellant to file a fresh application under Section 47, and to that extent he agrees that the appeal should be allowed. But he says that no second appeal lies from that part of the decree which relates to the dismissal of the application for failure to find security under Order 21, Rule 90. That contention must be accepted. A second appeal will not lie on that question, although we think that the present appeal so far as it relates to the provisions of Order 21, Rule 90 may be treated as an application in revision, because, if the District Munsif had no power to require security to be given, his insistence on it would amount to a wrongful exercise of jurisdiction. Therefore we will proceed to treat the rest of the appeal as an application for revision.
3. At the time when the District Munsif required the appellant to furnish security, Order 21, Rule 90, as amended by this Court read as follows:
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 he sale on the ground of a material irregularity or fraud in publishing or conducting it:
Provide of that the Court may, before admitting the application, call upon the applicant either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or that realized by the sale, whichever is less, or, to deposit such amount in Court;
Provided also that the security furnished or the deposit made as afore-.said, shall be liable to be proceeded against only to the extent of the deficit on a re-sale of the property already brought to sale;
Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity-or fraud.
4. This rule has been amended since then and the nature of the, amendment will be indicated presently.
5. The appellant contends that this rule is ultra vires of the powers conferred on this Court by Section 122 of the Code that it says that the. Court hearing the application may, before admitting it, call upon the applicant to furnish security. He would have it held that the decision of the Rangoon High Court in In re O.N.R.M.M. Chettiar Firm v. The Central Bank of India Ltd. (1937) Rang. L.R. 268 has application here. In that case a Full Bench of the Rangoon High Court of which I was a member, held that Order 21, Rule 90, as framed by the Rangoon High Court, was ultra vires. But that rule differed very materially from the corresponding rule of this Court. Under the Rangoon rule no application could be heard unless the applicant, on filing his application deposited the amount mentioned in the sale warrant or an amount equal to the sum realized by the sale whichever was less. If this rule were to be enforced it meant that no one aggrieved by a sale held in execution proceedings could cross the threshold of the Court with an application for an. order setting it aside as unlawful for non-compliance with the provisions of the Code, unless he brought with him in cash the amount mentioned in the sale warrant or the amount for which the property had been sold. This Court's rule as it stood even at the time of the sale did not go so far as that. The Court has full power to regulate its procedure, but that does not mean that a man may not be heard at all until security is furnished by him. Under Order 21, Rule 90, as originally framed by this Court, security could be required before the application was admitted. That did not mean, however, that an order requiring security might be passed without hearing the person affected by the order. In fact it would, be wrong of a Court to pass any such order without hearing the applicant. In order to prevent any misunderstanding as to the effect of the first proviso to Order 21, Rule 90 this Court has reframed it and the proviso now reads as follows:
Provided that the Court may, after giving notice to the applicant, call upon him before admitting the application either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or to that realised by the sale whichever is less, or to deposit such amount in Court.
6. This puts it beyond all controversy that an opportunity must be given to an applicant of showing cause before an order requiring security is parsed against him. Although this amendment was made subsequent to the District Munsif's order in this, case, the proviso, as it then stood, should be read as giving a right to the applicant to be heard on the matter of security. That opportunity was given to the appellant and consequently he has no grievance.
7. His learned advocate has, however, argued that the Court has no power in any circumstances to require security to be furnished. He says that although the filing of an application may be entirely unwarranted, the Court cannot insist on security being furnished. That is an argument which we are not prepared to accept. A person has the right of being heard, but once he has been heard, the Court can put him on terms before allowing him to, proceed further with such a matter. We hold that the rule as it stood in 1937 was intra vires the Court's powers and that therefore the District Munsif had power to pass the orders which he did on the 26th June and on the 19th August, 1937.
8. The result is that the appeal succeeds so far as it concerns the decree of the District Court requiring the appellant to file a fresh application under Section 47, but it stands dismissed in all t gather respects. Inasmuch as the second respondent has succeeded on the main question, that relating to the validity of the first proviso to Order 21, Rule 90, we consider that he is entitled to his costs.
9. The District Munsif will now be directed to proceed with the hearing of the petition so far as it concerns the allegations which do not relate to Order 21, Rule 90, and security will not be required.
10. The second petition filed in pursuance of the order of he District Judge is unnecessary and will be withdrawn by the appellant.