The revision petitioners are the judgment debtors and the defendants in the Suit. The revision has been filed challenging the order passed in unnumbered E.A. of the year 2008 in E.P.No.74 of 2006 in O.S.No.44 of 2005 on the file of the Sub Court, Arupukkottai.
2.The brief facts of the case in a nutshell are as follows:
The first respondent herein being the plaintiff filed the suit in O.S.No.44 of 2005 on the file of the Sub Court, Arupukkottai seeking the relief of recovery of money for a sum of Rs.4,95,466/- inclusive of principle and interest on a promissory note. The said suit filed by the first respondent was decreed on 12.06.2006. The petitioners have been set exparte and the application filed by the petitioners to set aside the exparte decree was returned for compliance. In the meanwhile, the first respondent filed an application in E.P.No.74 of 2006 seeking to bring the properties of the petitioners for sale to recover the amount in pursuant to the decree. The petitioners entered appearance in the execution petition but set exparte for not filing their counter and the said mistake had happened since the petitioners were assured by their then counsel that he would take care of the case. Thereafter, the properties were sold by auction in the Court auction held on 14.10.2008 for a sum of Rs.10,53,500/-. The second respondent is the auction purchaser and when the case is posted to 19.12.2008 for confirmation of sale and the petitioners came to know about the exparte orders and thereafter, they have filed the petition under Order 21 Rule 90 of the Civil Procedure Code by changing their counsel.
In the said petition filed the petitioners herein have contended that the properties sought to be brought up for auction are the subject matter of other suits initiated by the father and mother of the first respondent for recovery of money on a mortgage. The said fact has been suppressed. Infact there are four suits initiated against the petitioners by the above said persons. The son of the petitioners is also having the share in the properties brought up for sale and hence without impleading him the properties cannot be brought up for sale. The upset price fixed for the properties are very low and the Court ought to have taken steps to bring only a portion of the properties which is sufficient to realise the decree amount instead of the entire properties.
The said petition filed by the petitioners under Order 21 Rule 90 of the Civil Procedure Code was taken on file and admitted on condition that the petitioners shall deposit the sale warrant amount of Rs.10,53,500/- on or before 11.12.2008. The said order has been passed without numbering the application and without affording an opportunity to the petitioners. The petitioners have challenged the above said order dated 01.12.2008 raising various ground.
3.The learned counsel for the petitioners submitted that the proviso under Order 21 Rule 90 is not longer available since the same has been left out under amending Act 104 of 1976. According to the learned counsel for the petitioners, the said proviso which is introduced by way of amendment by the Hon'ble High Court providing either for furnishing security is no longer available after the introduction of the Act 104 of 1976. The learned counsel further submitted that even assuming the same is available inasmuch as it is in conflict with the provisions of Order 21 Rule 90 of the Civil Procedure Code, the same has to be ignored in view of Section 97(1) of the Amending Act. The learned counsel for the petitioners has relied upon the judgment reported in 1987-II M.L.J. 284 [K.V.JANAKIRAMA IYER vs. RADHAKRISHNA CHETTIAR AND ANOTHER] "7.For easy reference, Order 21, Rule 90 C.P.C., as it stood before the Amending Act may also be extracted.
"(Rule 90: Application to set aside sale on ground or irregularity or fraud:- (1) Where any immovable property has been sold in execution of a decree, the decreeholder 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 a material irregularity or fraud in publishing or conducting it:
Provided 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.
(High Court Amendment-Madras) -- After the first paragraph and before the present proviso to the rule, insert the following---
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;
Provided also that the security furnished or the deposit made as aforesaid, 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."
8.The above rule after the Amending Act stands as follows:--
Application to set aside sale on ground of irregularity or fraud:--(1) Where any immovable property has been sold in execution of a decree, the decreeholder, or the purchaser, or any other 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 a material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.
Explanation:-- The mere absence of, or defect in, attachment of the property sold shall not, by itself be a ground for setting aside a sale under this rule."
6.Section 97(1) of the Amending act is as follows:
"Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed."
4.The learned counsel for the petitioners has relied upon the judgment reported in 1982 T.N.L.J. 502 [V.KANNAN vs. HAJI ABDUL RAWOFF SAHIB] in support of his contention that inasmuch as the provisions the proviso under Order 21 Rule 90 being inconsistent with Order 21 Rule 90 as its stands now the same cannot be held as consistent with the Principal Act as amended by Amending Act 104 of 1976 and therefore, the resultant conclusion is that the proviso to Order 21 Rule 90 stands automatically repealed by Section 97(1) and 97(3) of the said Act.
5.Per contra the learned counsel for the respondents submitted that the proviso as provided by the Hon'ble High Court to Order 21 Rule 90 continuous in the statute and an amendment made to Order 21 Rule 90 under Act 104 of 1976 cannot be construed automatically as the one inconsistent with the proviso and therefore in view of the said proviso, the payment of deposit of the amount is a condition precedent. According to the learned counsel for the respondents inasmuch as the deposit is a pre-condition for admitting an application filed under Order 21 Rule 90 of the Civil Procedure Code the revision is liable to be dismissed. The learned counsel for the respondents has relied upon the judgment reported in 1987-II M.L.J. 320 [A.SHANMUGHAM vs.LAKSHMIPATHY NAIDU AND ANOTHER] in support of his contention that the proviso is only a case of legislation in and unoccupied field and hence the same is not inconsistent to the Principal Act. The learned counsel for the respondents also relied upon the judgment reported in 1940-II M.L.J. 972 [GUNTURU SEETA RAMANJANEYULU vs. VISHNUBHOTLA RAMAYYA AND OTHERS] in support of his contention.
6.I have heard the learned counsels appearing for the petitioners as well as the respondents. In the present case, it has to be decided as to whether the proviso has introduced by the Hon'ble High Court before the introduction of the Act 104 of 1976 still continuous or not. The further question to be decided is that even assuming the said proviso continuous the same is in contravention or inconsistent with the amended provisions under Order 21 Rule 90 of the Civil Procedure Code or not. In order to appreciate the said legal provisions it is better to extract Order 21 Rule 90 of the Civil Procedure Code as it has stood before the introduction of the amendment and after the introduction of the amendment as well as the Section 97 of the Act 104 of 1976.
7.Order 21 Rule 90 of the Civil Procedure Code as it has stood prior to the amendment is extracted herein:
"6.Section 97(1) of the Amending Act is as follows:
"Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed."
7.For easy reference, Order 21, Rule 90, C.P.C., as it stood before the Amending Act may also be extracted.
"(Rule 90: Application to set aside sale on ground or irregularity or fraud:-
(1) Where any immovable property has been sold in execution of a decree, the decreeholder 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 a material irregularity or fraud in publishing or conducting it:
Provided 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.
(High Court Amendment-Madras)--After the first paragraph and before the present proviso to the rule, insert the following----
Provided that the Court may, after giving notice to the appellant, 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;
Provided also that the security furnished or the deposit made as aforesaid, 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."
8.The above rule after the Amending Act stands as follows:-
Application to set aside sale on ground of irregularity or fraud:--(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other 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 a material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.
Explanation:-- The mere absence of, or defect in, attachment of the property sold shall not, by itself be a ground for setting aside a sale under this rule."
8.It is seen on a reading of the above said provisions Order 21 Rule 90 has been amended by Act 104 of 1976. The rule as they stood prior to the amendment clearly provides for an application to set aside the sale on the ground of irregularity or fraud. The proviso to the said rule by way of the amendment made by the Hon'ble High Court provides that the Court after giving notice to the applicant may call upon him before admitting the application either to furnish security or to deposit amount in the Court. The Parliament has not specifically introduced the said proviso under Act 104 of 1976. However one can see that there is not much of a change in the provisions containing in Order 21 Rule 90.
9.Order 21 Rule 90 provides for an opportunity for a party to set aside the same on the grounds mentioned therein. The proviso has been added in order to avoid unwanted and unnecessary applications and also to give certain certainty to the decree obtained. As seen above an application under Order 21 Rule 90 can be filed only on the ground mentioned therein. A perusal of the explanation to the amending Act would show mere defect in the attachment of the property sold shall not by itself a ground for setting aside the sale. Therefore by reading of the above said provisions herein before or after the amending Act, this Court is of the opinion that it cannot be construed that the proviso entered by way of amendment by the Hon'ble High Court is either contrary or inconsistent to the amending Act. In other words, the proviso only occupies the unoccupied field which cannot be construed as contrary to the provisions of the Principal Act.
10.Similarly, it cannot be said that the proviso introduced by the Hon'ble High Court is repealed by Section 97 of the Act 104 of 1976. In the judgment reported in AIR 1986 SUPREME COURT 589 [GANPAT vs. II ADDITIONAL DISTRICT JUDGE, BALIA], the Hon'ble Supreme Court was pleased to observe that in a case where the local amendment made to the provisions of the Court either by a State Legislature or by a High Court which are inconsistent with the Court as amended by the amending Act they stood repealed automatically. However in the present case on hand, it cannot be said that the proviso to Order 21 Rule 90 is inconsistent or contrary to the Principal Act, therefore they would stand repealed in view of Section 97(1) of the Act. In the judgment reported in 1982 T.N.L.J. 502 [V.KANNAN vs. HAJI ABDUL RAWOFF SAHIB] , the Hon'ble High Court was pleased to hold in view of the fact that there is no mention about the rule as per the amended Act enacted by the parliament, the said rule enacted by the Hon'ble High Court cannot be termed as consistent with the Principal Act as amended by the amending Act 104 of 1976. Similarly, in the judgment reported in 1987-II M.L.J. 284 [K.V.JANAKIRAMA IYER vs. RADHAKRISHNA CHETTIAR AND ANOTHER], the Hon'ble High Court has taken the same view based upon a judgment of the Andhra Pradesh High Court. A reading of the above judgments would show that the Hon'ble High Court has proceeding on the footing that by a mere introduction of amending rule under Order 21 Rule 90 the proviso introduced by the Hon'ble High Court automatically stands vanished.
11.The above said reasoning of the Hon'ble High Court in the respectful opine of this Hon'ble High Court is not legally correct. Merely because the proviso has not been mentioned by the Parliament it cannot be construed that the same has been removed from the statute. Moreover the proviso having been introduced by the Hon'ble High Court there is no necessity for the Parliament either to reintroduced or to remove the same. In the judgment reported in 1987- II M.L.J. 320 [A.SHANMUGHAM vs.LAKSHMIPATHY NAIDU AND ANOTHER], the Hon'ble High Court has held that in such a situation it can only be held that the proviso is a case of legislation in an unoccupied field and therefore, the same cannot be taken as inconsistent or contrary to the provisions of the Principal Act. This Court is in respectful agreement with the said judgment of the Hon'ble High Court. Therefore on a consideration of the above said legal position, this Court is of the opinion that the proviso as it stood prior to be introduced of the Act 104 of 1976 continuous even thereafter. In the judgment reported in AIR 1989 ALLAHABAD 173 [G.K.BROTHERS vs. HINDI PRACHARAK PRAKASHAN AND OTHERS], the Allahabad High Court has held that the provisions which requires the deposit of sale consideration is not inconsistent with Act 104 of 1976. Consequently, the Allahabad High Court has held that the proviso would not come within the mischief of Section 97(1) of the Act 104 of 1976.
12.In another question to be decided in the present case is that as to whether the petitioners are entitled to a prior notice to showcause as to whether they are liable to pay the amount as specified under the proviso to Order 21 Rule 90 of the Civil Procedure Code. A reading of the proviso would clearly show that the Court will have to issue notice before admitting an application by providing an opportunity to the applicant to satisfy the Court as to whether any amount is to be paid, deposited or furnished as a security. The Court shall give an opportunity to the applicant to comply with the said clause of the proviso and thereafter reject the said application if the same is not complied with. Further, it is to be seen that wide discretion is given to the Court regarding the dispensing of the said condition. The word 'may' as mentioned in the proviso would only indicate that the Court shall exercise its discretion based upon the facts and circumstances of each case before admitting an application filed under Order 21 Rule 90 of the Civil Procedure Code. In the judgment reported in AIR 1970 SUPREME COURT 1384(1) [HINDUSTHAN COMMERCIAL BANK LTD., vs. PUNNU SAHU], the Hon'ble Supreme Court has observed as follows:
"5.In the High Court, the appellant prayed for an opportunity for complying with the requirements of Clause(b) of the proviso to Order 21, Rule 90, Code of Civil Procedure but the High Court refused to grant him that opportunity as in its opinion, the compliance of the proviso had to be made prior to the disposal of the application on merits. It proceeded on the basis that the compliance of the proviso is mandatory and as such the court is incompetent to permit the applicant to comply with the same, once the application has been disposed of on merits. In our judgment this view of the High Court is erroneous. Clause (b) of the proviso confers on court considerable discretion. It is left to the court to decide the quantum of deposit to be made subject to the maximum prescribed therein. The court is also conferred with the power to dispense with the requirements of making a deposit, for reasons to be recorded. From the language of the proviso, it is clear that the power conferred on the court is a discretionary power. As observed by the Allahabad High Court in Kundan Lal's case, AIR 1962 All 547 (supra) it is expected that the court would ordinarily give an opportunity to the applicant to comply with Clause (b) of the proviso and could reject the application if the same were still not complied with. That should be particularly so in an application made before Clause (b) was incorporated into the proviso. As seen earlier before the executing court all the parties had proceeded on the basis that the clause in question did not apply to the present proceedings. Under the circumstances, we are of the opinion, that in the interest of justice the High Court should have remanded the case to the executing court leaving it to that court to exercise its discretion under Clause
(b)."
13.Similarly, in the judgment reported in AIR 1992 ORISSA 52 [KAMALA KANTA MOHAPATRA AND ANOTHER vs. DEBARCHAN SETH AND ANOTHER] it has been held that the condition imposed in the proviso is discretionary. In AIR 1972 ANDHRA PRADESH 223 [TAMMA VENKATA PARDHASARADHI vs. TAMMA RAMACHANDRA RAO AND OTHERS], the Honble Division Bench has been held that the word used in the proviso is only 'may' and therefore a discretion is available to the concerned Court to enforce the proviso depending the facts and circumstances of each case to decide as to whether the security or deposit are required. A full Bench of this Court in the judgment reported in 1940-II M.L.J. 972 has taken the view that the said proviso cannot be held ultra vires but however a prior notice will have to be given by the Court to the party who filed application under Order 21 Rule 90 before imposing any condition.
14.In this connection, it is useful to refer Section 6-A of General Clauses Act.
"6-A. Repeal of Act making textual amendment in Act or Regulation. Where any [Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
A reading of the said provision would show that merely because an amendment has been made to the main provision the proviso attached to the original provision as stood earlier will not get automatically vanished. There is also a difference between repealing and superseding. In the present case, original provision as contained in Order 21 Rule 90 of the Civil Procedure Code has been superseded by the subsequent amendment and therefore, it has to be held that the effect of superseding the original provision is not to obliterate it altogether. Therefore, it has to be held that whenever an amendment has been applied subsequent to the date of the amendment then the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. More so, when the said amending Act does not come into conflict with the existing provisions.
15.Therefore taking into consideration of the above said judgments, this Court is of the opinion that the proviso as introduced by the Hon'ble High Court provides for discretion to the Court for dispensing with the said condition and the Court will have to issue prior notice before imposing any such condition.
16.Coming to the present case on hand a reading of the order would show that the Trial Court has directed the petitioners to deposit the sale warrant amount of Rs.10,53,500/-. The said order has been passed without affording an opportunity to the petitioners. Further it is not been indicated as to whether the sale warrant amount is lesser than that of the sale amount. Further, the Court has also considered the fact as to whether such a condition is necessary or not. Hence taking into consideration of the above said fact, the order passed by the Trial Court dated 01.12.2008 is hereby set aside and the Court below is directed to proceed afresh in accordance with law. If the Court below is of the opinion that the condition is to be imposed then it is open to the Trial Court to issue a prior notice to the petitioners on merits in accordance with the proviso to Order 21 Rule 90 of the Civil Procedure Code and proceed further.
17.With the above said observation, the Revision is allowed accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
sri To The Subordinate Judge Aruppukkottai, Virudhunagar District.