Jurisdiction of Court to demand security.

This is an appeal by the petitioner in the Court below in an application under Order 21, rule 90 of the Code of Civil Procedure to set aside the sale on account of certain material irregularities, and alleged fraud. The learned IInd Assistant Judge of the City Civil Court, Madras, dismissed the application because the petitioner (appellant) defaulted to furnish security as demanded by the Court under the First proviso to Order 21, rule 90, Civil Procedure Code. The facts are practically admitted, and the appeal merely involves a simple question of the application of certain relevant legal principles to facts of this character.

What happened in the Court below was this. The petitioner (appellant) had not furnished security, and the matter was before the Court on 31st October, 1957. On the adjourned date, there was a definite order made calling upon the appellant to furnish security in a sum of Rs. 5,000 and the proceedings were again adjourned to 16th November, 1957. On that date, security was not furnished but the learned Counsel for the decree-holder appeared, and took notice voluntarily, and desired to file a counter-statement. He was permitted to file this counter-statement upon his voluntarily taking notice, and the statement was filed on 20th November, 1957. It was then that the learned Counsel for the judgment-debtor (appellant) put forward the contention, which is also now advanced before me, that the Court, in permitting the learned counsel for the deree-holder to file a counter when he Had no locus standi to appear, was in effect admitting the application under Order 21, rule 90, Civil Procedure Code. Once the Court admitted the application, it had no further jurisdiction to call for security. This last proposition is not in dispute, and it is supported by the authority of a Division Bench of this Court in Vaidyanatha Ayyar v. The Indian Bank Ltd.1. The argument is that whatever might have been the original intention of the Court, and even if the Court was not conscious that it was virtually defeating its own intention, by implication, when it permitted the learned. Counsel for the decree-holder to appear and to file a counter nevertheless the implication cannot be denied that this deprives the Court of the further jurisdiction to call for security. The question is whether the Court can, by the effect of a legal implication of this character, be presumed to have done what it consciously never intended to do.

The precise matter came up before King and Happell, JJ., in Venkatalingama Nayanim v. Venkata Narasimha Nayanim2. The facts of that case were that in an application to set aside a sale in execution of a decree, the petitioner was ordered, to furnish security on a certain date, when a draft security bond was tendered. Without testing the security, the Court, presumably by inadvertence, issued notice to the opposite side which appeared and raised objections to the sufficiency of the security. The security was tested and found to be wholly inadequate, and the Court dismissed the application for default in furnishing security. On an appeal against that order, this very same proposition was put forward that by issuing notice, the Court must be deemed to have admitted the application, and thereby to have deprived itself of the jurisdiction to furnish security.

The learned Judges then observed,

“Whereas in this case, we are able upon the facts to ascribe to the Court a quite different intention when it issued the notice, then it would be absurd to hold that there is any principle of law by which the Court should be deemed to have done what it consciously did not intend to do. It is clear therefore to us that in issuing notice, the Court did not intend to deprive itself of the power of deciding whether the security to be eventually furnished by the petitioner was adequate or not”.

This authority precisely applies to the present facts, which are even stronger than the facts of the citation. In the present case, the r