The court has the discretion to dispense with the requirement of furnishing security under Order XXI, Rule 90(1) Proviso (b) in appropriate circumstances.

( 1 ) THE Judgment debtor, opposite party No. 3 filed an application under Order XXI, Rule 90 of the Code of Civil Procedure for setting aside the sale dated 10. 11. 64 of a house fora sum of Rs. 15,000 in execution of a decree obtained by the decree holder on 7. 10. 60 through Execution case No. 216/63 for recovery of Rs. 3. 874. 45 paise on the ground that the valuation of the house was about Rs. 1 lac which was sold for Rs. 15,000 which is shockingly a low price. This application was allowed and the order dated 10. 11. 64 was set aside and a fresh proclamation as provided under Order XXI, Rule 67, C. P. C. was directed to be issued by order dated 27. 11. 75. The decree-holder preferred and appeal which is being numbered as Civil Appeal No. 24/76 which was converted into a revision by the learned IVth Addl. District Judge Court at Kanpur. By order dated 4. 5. 79 the learned IVth Addl. District Judge has dismissed the revision. It is these orders which have since been challenged by means of this writ petition by the judgment-debtor.

( 2 ) NOTICES were sought to be served on opposite party No. 3 but it could not be ultimately served thereunder. By an order dated 13. 2. 81 the petitioner was directed to file an affidavit of service with regard to the service. The affidavit of service was filed on 16. 5. 97. It appears that the affidavit of service was affirmed on 4. 9. 79. From the acknowledgment card and envelop it appears that the same was sent under registered post with acknowledgment due.

( 3 ) BY an order dated 16. 5. 97 the service was accepted as valid service. Thus this matter has been placed for hearing today. No one appears to opposite the petitioner.

( 4 ) MR. B. Dayal. learned counsel for the petitioner contends that in view of the decision in the case of Chunni Lal v. Santoo Lal, AIR 1983 All 167, no application under Order XXI. Rule 90, should be entertained unless security as provided in clause (b) of Order XXI, Rule 90 sub-rule (2) of Allahabad amended C. P. C. is complied with. The said Rule requires furnishing of security as mentioned therein for the purpose of making an application under Order XXI, Rule 90. Relying on the said decision learned counsel submits that the order impugned had overlooked to the legal aspect and therefore cannot be sustained and is liable to be set aside.

( 5 ) ORDER XXI, Rule 90 stands amended so far as its application to U. P. is concerned. Proviso to sub-rule (1), provides that "no application to set-aside a sale under this Rule shall be entertained :

(a) upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up ; and (b) unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the Court may in its discretion fix except when the Court for reasons to be recorded dispenses with the requirements of this clause : provided further that no sale shall be set aside on the grounds 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. "

( 6 ) RELYING on clause (b) of Proviso to Rule 90, or Rule 1, and the decision in the case of Chunni lal (supra ). Sri B. Dayal contended that in the present case the judgment-debtor having not furnished security in terms of clause (b), the application was not maintainable. Therefore, both the learned Courts below wholly without jurisdiction entertained the application and allowed the same and thereby acted illegally and for this reason the impugned orders are liable to be set aside.

( 7 ) THE learned Munsif in his order dated 27. 11. 75. has recorded that after several rounds ultimately the petitioner was directed to furnish security by an order dated 22. 1. 72. It appears that originally the petitioner was asked to deposit 50% in cash and the balance by security which order was su