1. Learned counsel for the appellant Shri Ashok Lalwani submitted that in this case the appellant has not made the deposit as required under the first proviso to section 173 (1) of the Motor Vehic1es Act, 1988 and he has addressed the Court that in the first Proviso (aforesaid) the word "entertain" is used which signifies "not at the admission stage" but signifies the stage of final hearing.

2. Thereafter, he modified the submission that he means to submit that the condition of entertainment of the appeal regarding the deposit of the amount is mandatory provision is between the stage of admission and final hearing and as such, since the case is posted in motion hearing, he is not required, under the law, to make the deposit. The stage of depositing the amount as mentioned in the proviso would come after the appeal is admitted in the motion hearing.

3. The learned counsel for the appellant has relied on, on the provisions of Order 21 Rule 90 C.P.C. Clause (b) as per amendment made by Allahabad High Court, which is as extracted below :-

"(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 requirement of this clause."

4. In this context, the learned counsel for the appellant placed reliance on the case of the Supreme Court in Hindustan Commercial Bank Limited v. Punnu Sahu (died) through L.Rs. (AIR 1970 SC 1384). The said proviso was the subject-matter of consideration before the Supreme Court which used the word, 'entertain'. In the said case, for certain properties belonging to judgment-debtor (the appellant in that case) executing court was moved under Order 21 Rule 90 C.P.C. to set aside the sale. His application was dismissed on the ground that he was not an interested party. Aggrieved by that, order, he went in appeal in the High Court of Allahabad. The High Court reversed the findings of the lower Court that the appellant was not an interest party but at the same time, dismissed the appeal on the ground that as the appellant had not complied with the requirement of Rule 90 of Order XXI, Code of Civil Procedure as amended by the Allahabad High Court, his application was not maintainable. Clause (b) of the proviso was added on; 1st June 1957. The application with which the Court was concerned, was made on 2nd June, 1957. The applicant did not pay the security as provided under the newly amended clause nor did the Court call upon to do so. Before the executing Court, all the parties proceeded on the basis that the application was regularly made. The objection as to the maintainability of the application appears to be taken for the first time in the High Court.

5. Before the High Court, it was contended on behalf of the judgment-debtor and that contention was repeated before the Supreme Court, that clause (b) of the proviso did not govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. The contention of the appellant was that the expression "entertain" found in the proviso, refers to the initiation of the proceedings and not to the stage when the Court takes up the application for consideration. This contention was rejected by the High Court relying on the decision of that Court in Kundanlal v. lagan Nath Sharma (AIR 1962 All 547). The same view had been taken by the Allahabad High Court in Dhoom Chand lain v. Chamanlal Gupta (AIR 1962 All 453) and Haji Rahim Bux & Sons v. Firm Samuullah and Sons (AIR 1963 SC 320) and Mahavir Singh v. Gauri Shankar (AIR 1964 All 289). These decisions have interpreted the expression "entertain" as meaning 'adjudicate upon' or 'proceed to consider on merits'. This view of the High Court has been accepted as correct by the Supreme Court in Laxmiratan Engineering Works Limited v. Assistant Commissioner Sales tax Kan