S. Maharajan, J.
1. The appellant, who was the second defendant in O.S. No. 318 of 1968: of the file of the Sub-Court, Madurai, attacks the order of the executing Court dismissing his application for setting aside-a judicial sale, on the ground that he bad-failed to furnish security.
2. In the suit, a preliminary mortgage decree was granted in favour of the plaintiffs-mortgagees, for Rs. 8,000 and subsequent interest. Clause (6) of the decree provided that if the decree amount were-paid by defendants 6 to 10 to the plaintiffs, as decreed in Clause (1) defendants 6 to 10 would be entitled to realise the said amount from defendants 1 to 5 with subsequent interest and costs. The decree granted under Clause (1) was a mortgage decree, and the decree granted under Clause (6), in the event of defendants 6 to 10 paying off the mortgage decree, was a money decree passed by way of contribution. Defendants 6 to 10 paid off the mortgage decree in favour of the plaintiffs, and, by virtue of Clause (6) of the decree, became entitled to a simple money decree against defendants 1 to 5 for the same amount as was decreed in favour of the plaintiffs. It was in execution of this decree that the properties of defendants 1 to 5 were brought to sale. The sale itself was held on 22nd January, 1971. Items 1 and 3 were sold at the auction as one lot and purchased by one Angayarkanni, a third party, for Rs. 8,500.
3. On 19th March, 1971, the appellant, who was the second defendant, filed an application praying for setting aside the sale held on 22nd February, 1971. The docket-sheet describes the petition as one 'filed under Order 21. Rule 90, Section 47 and Section 151 of the Code of Civil Procedure'. On that day itself, the office returned the application on the ground that no security petition had been filed and that it should be filed before 26th March, 1971. On 23rd March, 1971, the petition was re-presented by the appellant's advocate with the following endorsement:
The petitioner begs to rely on Sections 47 and 151, Civil Procedure Code alone, in which case security need not be furnished. Represented.
Presumably at the time of the re-presentation of the petition the heading of the petition which originally referred to 'Order 21, Rule 90, Civil Procedure Code' was scored out. The matter was being called from time to time, and, on 29th July, 1971, the learned Subordinate Judge wrote in the notes-paper as follows;
Call on 18th August, 1971. Petitioner is to be heard as to how security is not liable to be furnished, as petition is essentially one under Order, 21, rule 90 Civil Procedure Code though petitioner is doubtless a party to the proceedings.
4. The matter was being adjourned several times to enable the petitioner to file a security application. On 16th September, 1971, the following note in the handwriting of the Sub-Judge is found;
(Security application) File (or filed). Check and call, 23rd September, 1971.
(Learned Counsel for the appellant says that the appellant never filed any security application). However, we find from the notes-paper that the Petition was adjourned to 23rd September, 1971, 12th October, 1971 and 21st October, 1971, that no security application was filed, or, if filed end returned, was not re-presented, with the result that on 21st October, 1971 the application was dismissed.
5. Under the first Proviso to Order 21. Rule 90, Civil Procedure Code, it is open to the Court before admitting an application to set aside a sale under Order 21, Rule 90, to call upon the applicant to furnish security to the satisfaction of the Court and to dismiss the application itself in case the applicant fails to furnish security.
6. It is clear from the re turn made by the Court below and from the notes found in the notes-paper after re-presentation by the petitioner of the application, that in the view of the Court the application was essentially one under Order 21, Rule 90 Civil Procedure Code and that the Court dismissed the application, because the petitioner, inspite of several opportunities given to him to furnish security failed to do so. But the question arises whether the application that was dismissed did not contain grounds for setting aside the judicial sale otherwise than under Order 21, Rule 90.
7. If the application contains grounds for setting aside the sale, which are extraneous to an application under Order 21, Rule 90, it is clear that the Court below had no jurisdiction to dismiss the application for failure of the petitioner to furnish security. It is open to the judgment-debtor in proceedings of this kind to attack the sale not only on the grounds available to him under Order 21. Rule 90, but also on the grounds available to him under Section 47, Civil Procedure Code as well as on the ground that prior to the publication and conduct of the sale certain illegalities, by way of violation of the requirements of Order 21, have |been committed and therefore the sale under the hammer of Court is void, ab initio. If, therefore, an application filed by a judgment-debtor to set aside an [execution sale, contains grounds, which are outside the purview of Order 21, Rule 90, Civil Procedure Code, it is not open to the Court to straightaway dismiss the same on ground that the petitioner has failed to furnish security.
8. As I have already pointed out, though the application presented by the appellant inferred to 'Order 21, Rule 90, Civil Procedure Code', it also made mention of Sections 47 and 151 Civil Procedure Code and at the time the application was represented all reference to 'Order 21, Rule 90, Civil Procedure Code was actually scored out by the petitioner, thereby making it clear that the petitioner in this case prayed for setting aside the judicial sale not on grounds mentioned in Order 21, Rule 90, Civil Procedure Code but on grounds available to him as judgment-debtor under Sections 47 and 151, Civil Procedure Code.
9. The nature of the application has to be judged with reference to the substance of it, and not with reference to the Sections that the petitioner may choose to quote in the application. I find that some of the grounds mentioned in the application do fall under Order 21, Rule 90, Civil Procedure Code because they are in the nature of material irregularity or fraud appertaining to the publication and conduct of the sale. For instance, in ground (e) in paragraph 4 of the application, reference is made to the decree holders wilfully suppressing the publication of the proclamation of the sale as well as to their failure to publish the same in places where under the law they are required to publish it. Again, in paragraph 7 of the application, reference is made to material irregularities right from the publication of sale upto the date of sale. These grounds, therefore, would unambiguously fall under Order 21, Rule 90, Civil Procedure Code. The Court below was right to call for security and to dismiss the application for the failure of the petitioner to furnish security only in so far as these grounds falling under Order 21, Rule 90, Civil Procedure Code are concerned.
10. But, there are other grounds mentioned in the application, which do not fall under Order 21, Rule 90. For instance, in Clause (b) of paragraph 4 of the application, the petitioner's stand is that the decree holders had purposely undervalued the properties. In Gnanambaram Pillai v. Rathinam Pillai : AIR1972Mad364 , a Division Bench of this Court following an. earlier Division Bench decision in Kanda-swami Mudali v. Narasimha Iyer : AIR1952Mad582 , held
Anything done antecedent to the order of sale has nothing to do with 'conducting' the sale. Again it is observed by him that the word ' publishing' also refers only to what is done antecedent to the actual conduct of the sale but subsequent to the order directing the sale.
It was further held by the Division Bench that
Any irregularity or fraud in the settlement of proclamation which precedes-its publication or conduct of the sale is-not, in our opinion, attracted by Rule 90.
11. The basis of this view was that the words 'material irregularity, or fraud in publishing or conducting it' occurring in Order 21, Rule 90 cannot be extended to the 'material irregularities arising out of a breach of the requirements, say, of Rule 22 or Rule 66 of Order 21. I follow these rulings and hold that the ground given in Clause (b) of paragraph. 4 of the application for attacking the sale is something outside the scope of Order 21, Rule 90.
12. Reference may also be made to Clause (d) of paragraph 4 of the application, in which reliance is placed by the appellant on an undated mediation, at which it was allegedly agreed between the decree-holders and the appellant that the appellant should pay them a sum of Rs. 9,000 on or before the 30th of April, 1971 and the decree-holders should accept the same in full satisfaction of the decree. This is a ground which certainly does not fall under Order 21 Rule 90, Civil Procedure Code.
13. It is pointed out by learned Counsel for the 6th respondent, Mr. O.V. Baluswami, that what is pleaded in Clause (d) of paragraph 4 is in the nature of an adjustment and the judgment alleged not having been certified within the period of thirty days allowed by the law, shall not be recognized by any Court executing the decree--Vide Order 21, Rule 2 (3). The appellant has been too clever and ingenious to give the date of the alleged mediation and agreement. But then, he has in Clause (d), charged the decree-holders with having contravened the agreement of adjustment and paid sale batta in the teeth of the agreement. It is found from the records that sale batta was paid by the decree-holders on 15th February, 1971, Under Article 125 of the Limitation Act, 1963, the appellant had just thirty days from the date of the adjustment to apply to record the adjustment or satisfaction of the decree. He did not file an application within thirty days from the date of the alleged adjustment which must be prior to 15th February, 1971. He actually filed the present application on 19th March, 1971, in which he made a reference, for the first time, to the alleged adjustment. It is, therefore, open to the Court to ignore the ground mentioned in Clause (d) of paragraph 4 of the application.
14. In paragraph 6 of the application, reference is made to the petitioner having filed an insolvency application in I.P. No. 42 of 1970, on the file of the Sub-Court, Madurai. The petitioner is careful enough not to state in that paragraph whether in pursuance of I.P. No. 42 of 1970 he has even been actually adjudicated an insolvent. Learned Counsel for the 6th respondent, however, says that the petitioner has never been adjudged an insolvent and that I.P. No. 42 of 1970 has actually been dismissed subsequently. However, the petitioner without referring to the result of I.P. No. 42 of 1970 says in paragraph 6 of his application that under Section 28 (2) of the Provincial Insolvency Act, the adjudication would date back to the date of the filing of the insolvency petition and the respondents ought to have obtained the special permission of the insolvency Court before bringing the schedule-mentioned properties for sale. I am not very much impressed with the merit of the ground contained in paragraph 6. But the fact remains that it is a ground which falls outside the purview of Order 21, Rule 90, Civil Procedure Code.
15. It is unnecessary for me at this stage to deal with each ground mentioned in the petition and find out which falls strictly within the four corners of Order 21, Rule 90 and which does not. Suffice it for the present purpose to say that there are at least some grounds mentioned in the application for setting aside the sale, which are extraneous to the grounds mentioned in Order 21, Rule 90. It would then follow that the application, in so far as it contains such grounds, could not be dismissed for the failure of the petitioner to furnish security under Order 21, Rule 90, Civil Procedure Code.
16. I, therefore, set aside the order of dismissal passed by the Court below, remand the matter and direct the Court below to take it on file and dispose it of in accordance with law. But it must be clearly borne in mind that such of the grounds mentioned in the application as fall strictly within the four corners of Order 21, Rule 90, Civil Procedure Code will no longer be available to the appellant as grounds for setting aside the sale in question, because by failing to furnish security he has precluded himself from urging-those grounds.
17. Needless to add that nothing that I have said in this order shall preclude the parties from raising such pleas as are open to them under law.
18. In the circumstances of this case, the. appeal is allowed as indicated below, but without costs.