Imposition of condition not contrary to the provisions of the Act.

This civil revision raises an important question about the validity of the Madras Proviso to O.21, R.90, C.P.C. of 1908 hereinafter referred to as the principal Act as a mended by the Amendment Act 104 of 1976.

2. Order 21, Rule 90(1) of the principal Act runs thus -

Where any immovable property has been old 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.

"To this main provision the following proviso has been added by this Court -" *

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 that realised by the sale, whichever is less, or to deposit such amount in Court.

"It is the validity of this proviso that is in question.

3. The petitioner herein, who is the judgement debtor in the above suit, filed an application to set aside the Court auction sale deed in E.P. 361 of 1984 and the learned District Munsif called upon the petitioner to furnish security in accordance with the aforesaid proviso. The petitioner then filed an application to dispense with the furnishing of security and the learned District Munsif dismissed the same. Hence this revision.

4. It is contended on behalf of the revision petitioner that the Madras proviso empowering the Court to call upon the applicant to furnish security is inconsistent with O.21, R.90 of the principal Act, and is therefore invalid. The learned District Munsif was, therefore, in error in calling upon the petitioner to furnish security before admitting his application to set aside sale. Reliance is sought to be placed on the decision of Balasubrahmanyan J. in V. Kannan v. Haji Abdul Rawoof Sahib, 1982 TLNJ 502, where the learned Judge has held that the proviso introduced by this Court is inconsistent with the principal Act as amended by the Amending Act 104 of 1976. The learned Judge has proceeded on the assumption that O.21, R.90 of the principal Act before the principal Act was amended by the Amending Act 104 of 1976, contained a provision for calling for security and that the Amending Act 104 of 1976 has dispensed with that condition and hence the Madras provisions inconsistent with the principal Act as amended by Act 104 of 1976, as is clear from the following passage in his judgement :-" *

The learned counsel for the decree-holder does not dispute that in the rule which now stands introduced by the Parliament as O.21, R.90 by Act 104 of 1976 there is no mention at all of any security ac a pre-condition for an application by the judgement debtor for setting aside the sale on the ground of material irregularity, The omission of a provision of this kind might have passed unnoticed but for the fact that in O.21, R.90, C.P.C. as framed by the High Court of this State there was a specific provision to the following effect :-

'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.'

This proviso is conspicuous by its absence in the rule after it was re-fashioned by Act 104 of 1976.......

"The enquiry therefore is whether the provision in the High Court rule insisting upon the furnishing of security as a pre-condition for admission of the application under O.21, R.90, can be said to be consistent with the amended R.21, R.90 as it exists after Act 104 of 1976. The requirement as to furnishing of security imposed an erroneous burden on the judgement debtor. The proviso passed by the High Cour