The main legal point established is the discretion of the executing court in accepting further security and the distinction between the admission of an application and the intention of the court in issuing notice.

King, J.

1. The subject-matter of this appeal is a sale in execution of a decree in O.S. No. 86 of 1916 held on the 30th September, 1939. On the 27th October, the appellant applied under Order 21, Rule 90 to have the sale set aside. The learned Judge ordered that he should furnish security under the proviso to Rule 90 and granted him time for one week for this purpose. On the same day (31st October) the appellant filed another application asking for more time for furnishing security, and eventually time was extended to the llth November on which day a draft security bond was tendered, to the Court by the appellant. On the 15th November, without passing any orders in regard to the adequacy of the security tendered or to the necessity for furnishing any registered security bond, the Court issued notice to the opposite side; When the respondent appeared he took the objection that the property offered as security was not sufficient and the Court ordered the security to be tested. The result of the test was that the property offered as security was found to be wholly inadequate and the Court thereupon dismissed the application of the appellant without considering it on its "merits, on the ground that he had failed to furnish security. The appellant appeals against that order.

2. The first point taken in appeal is that by issuing notice on the 15th November, the Court had admitted the application and had therefore precluded itself from dismissing it except after consideration on the merits. This argument appears somewhat startling to us. But it is sought to be supported by the enunciation of a legal principle that whenever a Court issues notice, whatever the circumstances may be, the Court must be deemed to have admitted the petition, and therefore no further steps can be taken in regard to the dismissal of a petition under Rule 90 because security has not been furnished. We have been referred to two rulings in this connection : one the judgment of Mr. Justice Mockett reported in Narasimha Pattamahadevi v. Annan Naidu AIR1940Mad624 and another judgment by a Bench of this Court of which one of us was a member, reported in Chidambaram Pandaram v. Lakshminarayana Chettiar AIR1941Mad652 In the former case, it has been held that ordinarily the decision of the Court to issue notice is tantamount to the admission of an application : and in the second case the same point of view has been taken and the learned Judges go even further and say that even though the Court below did riot intend really to admit a petition, if in law the procedure adopted by it has necessarily the effect of having brought about the admission of the petition, then it must be deemed that the petition has been admitted independently of the intention of the Court. We cannot find in either of these judgments any comprehensive principle that in all circumstances the mere issue of a notice by the Court must be considered to be the equivalent of an admission of an application. In the two cases which have been brought to our attention, the circumstances were that a petition was first filed and notice was issued, and it was only after the notice had been served and the respondent has appeared that the Court began to consider the question raised before it by the respondents of the necessity for calling upon the petitioner to furnish security. In the present case, when the petition was filed by the petitioner, the Court called upon him, before issuing notice, to furnish security. The facts therefore present this very essential point of difference. In both Narasimha, Pattamahadevi v. Annan Naidu AIR1940Mad624 Chidambaram, Chettiar v. Lakshminarayana Chettiar AIR1941Mad652 there was no possible room for any argument that the Court could have meant anything else by issuing the notice than to admit the application. In the present case the learned Judge in the order now appealed against has carefully analysed the facts and circumstances and has come to the conclusion that whe