1. In execution of a decree a sale was ordered on the 15th of March, 1937. On the 10th of April, 1937, the judgment-debtor petitioned the Court to set aside the sale under Order 21, Rule 90. Notice went to the decree-holder and on the 1st of May, 1937, he put in a counter-affidavit in which he prayed that the judgment-debtor should deposit security. On the same day the Court ordered the judgment-debtor to deposit security by the 15th of June, 1937. On the 14th of June, 1937, he put in a petition to the Court saying that the Court had no power to order the deposit because the order to furnish security was made after the petition to set aside the sale was admitted. On the 28th of June, 1937, that petition was dismissed. Time was extended to 2nd July, 1937. On that day the judgment-debtor stated he was unable to make the necessary deposit and his petition was dismissed. He appealed and the learned Subordinate Judge of Chicacole decided in his favour that the Court should not order a deposit after a petition was admitted.
2. The order of the District Munsif was as follows:
It has been argued before the that the order directing the deposit should be made before admitting the application (E.A. No. 298 of 1937) under the amendment to Rule 90 of Order 21. It is no doubt true that such an order can be passed even before admitting the petition on file but there is no restriction anywhere that no such order can be passed at no other time.
3. The learned Subordinate Judge passed the following order reversing the order of the District Munsif:
The lower Court has obviously misapplied the first proviso to Order 21, Rule 90. Security or deposit must have been 'called for' and that 'before' the admission of the application to justify the dismissal of the petition. The order of the lower Court is accordingly set aside....
4. It is argued before me now by the Counsel on behalf of the decree-holder that the order of the Subordinate Judge is wrong and that of the District Munsif right.
5. Order 21, Rule 90 provides for applications to set aside sales on the ground of irregularity. On the 20th of October, 1936, it was amended by introducing the following proviso:
Provided 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 realised by the sale, whichever is less or to deposit such amount into Court.
6. The question before me is whether the power of the Court to call upon the applicant to furnish security is confined to a time anterior to admitting the application to set aside or whether, as argued by the petitioner before me, it can be done not only before but after. No authority has been cited to me dealing directly with the question. I was referred to the decision of a Full Bench of five Judges of the High Court of Patna, Brij Behari Lal v. Firm Srinivas : AIR1939Pat248 , which is in relation to Order 21, Rule 90 as it is in Patna. In the course of that decision Harris, C.J., dealing with the term 'admission', says that:
Admission of the application presumably means the stage when the Court decides to issue notice upon such application to the opposite parties concerned.
7. I respectfully agree. 'Admission' to my mind conveys that point of time when an application or suit, as the case may be, is received into Court and accepted for decision, and that stage is when notice is given to the opposite side. A common example of that is the process known as admitting a Civil Revision Petition or a Second Appeal. I have before me the original petition placed before the District Munsif and it will be seen that he issued notice on the 20th of April, 1937 and proceeded to hear the application on the 1st of May, with affidavits completed, which obviously must be a stage long after admission. I think this proviso means exactly what it says. The Court, after all, is responsible for executing its decrees and I think the framers of the proviso had in mind the discretion in the Court to pass such orders as it thinks fit for the protection of the decree-holder, but the wording of the proviso specifically excludes the right of a decree-holder to apply to the Court for such orders. Whether this is satisfactory or whether it might not be usefully provided that an opportunity might be given to the decree-holder to be heard may possibly be matters for consideration : but as framed at the present moment, the wording seems to me to admit of no doubt whatever. The lower appellate Court therefore decided this matter rightly and this petition must be dismissed with costs.