Chidambaram Pandaram vs Lakshminarayana Chettiar

Pandrang Row, J.—This is an appeal from the order of the Subordinate Judge of Coimbatore dismissing an application to set aside a sale

under Order 21, Rule 90, Civil Procedure Code, on the ground that the security required to be furnished by his order made a few days earlier, had

not been furnished. The only ground taken in this appeal is that the order of the Subordinate Judge requiring security to be furnished is itself without

jurisdiction and therefore the order dismissing the petition to set aside the sale on the ground that the security has not been furnished is wrong.

There is no doubt that in this case the learned Subordinate Judge did not bear in mind that under Order 21, Rule 90 the Court could demand

security only before admitting the application and not afterwards. In this case it is clear from the endorsements made on the petitions that notice

was ordered in both the petitions, that is the petition to set aside the sale and also the petition to dispense with security and the Advocate on the

other side was actually heard before orders were passed in both the petitions. It cannot therefore be said that either of the petitions had not been

admitted. Usually and rightly the issue of a notice to the other side is regarded as a step showing that the petition has been admitted and certainly

the actual hearing of the other side before orders are passed is only making the matter more certain. It is quite possible of course that the lower

Court did not intend really to admit the petitions, but if in law the procedure adopted by it has necessarily the effect of having brought about the

admission of the petitions, it is not possible for us now to regard them as not having passed the admission stage when the order to give security was

made. We must therefore uphold the appellant''s contention that the order requiring security was one passed without jurisdiction and that

accordingly the order dismissing the application on the ground that security had not been furnished is wrong and must be set aside. The appeal is

accordingly allowed and the petition remanded to the Court below for being heard according to law. The appellant is entitled to his costs of this

appeal from the respondents.