Chinnam Santhamma alias Bezawada Santhamma vs Sri. Venkateswara Finance Corporation (Regd.) and others

Ramachandra Rao

The judgment-debtor is the appellant. The Respondents 1 and 2 obtained a decree against the appellant and the respondents Nos. 3 to 8 for recovery of money in O.S.No. 166/1971 On the file of the Additional Subordinate Judge, Vijayawada, and filed a petition E.P.No. 134 of 1972 for sale of the properties belonging to the judgment-debtor. The sale was held on 20-8-1973. The appellant then filed two applications one E. A. 931/1973 under the proviso to order 21 Rule 90 C.P.C. offering personal security for filing an application for setting aside the sale under Order 21 Rule 90 C.P.C. and another application E.A. 932/1973 for setting aside the sale under Order 21 Rule 90 C.P.C. On both these petitions, notice was ordered by the learned Subordinate Judge. The application E.A. 931/1973 was dismissed on 16-11-1973 stating as follows :-- This is a petition filed by Judgment debtor to accept his personal security as he filed petition to set aside the sale. He gave the security bond for Rs. 1500/-. The sale warrant amount is Rs. 7893-50. The property was sold for Rs. 13,000/-. So the security offered is too low. Further, the petitioner did not file his title deeds for this property offered by him as security. He did not file E. C. also. So the security cannot be accepted. Petition is dismissed. No costs.

Thereafter the petition E.A. 932/1973 was heard on 20-12-1973 and the same was dismissed as not maintainable as the petition offering security was dismissed. 2. The merits of the contentions raised by the parties were not gone into the two contentions urged in this appeal by Sri. N.C.V. Ramanuja Chary, learned counsel for the appellant (Judgment-debtor) is that once notice was ordered on the petition under Order 21 Rule 90 C.P.C. the lower court had no jurisdiction to dismiss the same as not maintainable for not furnishing security, and secondly the lower court erred in rejecting the application offering security without affording an opportunity to the appellant to furnish additional security.

So far as the second contention is concerned, I do not think there is any merit. No request appears to have been made in the lower court offering additional security. Further the sale warrant amount was Rs. 7893-50 P and the property was sold for Rs. 13,000/- where as the personal security offered by the appellant was only Rs. 1500/-. He had not furnished any title deed or encumbrance certificate. It shows that there were no bona fides on the part of the appellant in offering security. The lower court was justified in dismissing the petition. In the circumstances the contention now urged by the learned counsel for the appellant that an opportunity should have been given to the appellant to furnish additional security is without any merit.

So far as the first point is concerned, the learned counsel has invited my attention to several rulings in Pattamahadevi v. Annan Naidu AIR 1940 Mad. 624 Chidambaram Pandaram Vs. Lakshminarayana Chettiar, and Venkataramaiah v. Kesarimal firm 1963 (2) An WR 127.

The question whether the Court admitted the petition without the necessity of furnishing security under the proviso to order 21 Rule 90 C.P.C. depends on the facts and circumstances of each case. In Venkatalingama v. Narasimha AIR 1942 Mad. 509 an application was filed under order 21 Rule 90 CPC for setting aside the sale and the court ordered that the Judgement debtor should furnish security under the proviso to order 21 Rule 90 C.P.C. and a draft security bond was tendered to the Court. But subsequently before any order was passed with regard to the adequacy of the security tendered, the Court issued notice to the opposite side who appeared and took objection to the security offered as not sufficient and the court ordered security to be tested. The court found that the property offered as security was wholly inadequate and there upon dismissed the application filed under order 21 Rule 90 C.P.C. without going into the merits on the sole ground that the judgment debtor had failed to furnish security. On these facts, the learned judges King and Happell, JJ., held.

That in issuing notice, the Court did not intend to deprive itself of the power of deciding whether the security to be eventually furnished was adequate or not, and when at was found that the security was not adequate, the Court was entitled under S. 90 to dismiss the application without any further consideration of its merits.

In Vaidyanatha Ayyar v. The Indian Bank, Ltd. 1955 (2) M.L.J. 99 the learned Judges after referring to the earlier rulings of the Madras High Court in Pattamahadevi v. Annan Naidu AIR 1940 Mad. 624 Chidambaram v. Laxminarayana 1963 (2) An WR 127 and Venkatalingama v. Narrsimha AIR 1942 Mad. 509 observed as follows :

These decisions need not be regarded as being necessarily in conflict. All of them concur in the view that once a petition to set aside a sale is admitted, the Court cannot thereafter call upon the petitioner to furnish security. Where they appear to differ is this : In the first two cases it was held that when a petition is numbered and notice thereon is ordered, that would be conclusive evidenced that the petition has been admitted. In the last case, it was held that this is not so and that where it is otherwise clear that the Court did not intend to admit the petition, the circumstance that notice was ordered will not have the effect of admitting the petition. Whether a petition has been admitted or not would therefore depend upon two circumstances in each case.

Again there Lordships observed as follows :--

Now, the numbering of a petition is really an act of a ministerial officer of the Court.

When a petition is presented, it is checked in the office of the Court and if it is in order, it is automatically numbered. No Judicial process is involved at that stage. But, when notice is ordered, to go, it normally means that the Court has applied its mind to the petition and decided to bear the petitioner and the opposite side. Normally, that would be cogent evidence that the petition has been admitted. But, there may be cases where, notwithstanding the fact that notice has been ordered to issue, it is clear that such a result was not intended.

With respect, I agree with the aforesaid observations. These observations clearly show that the mere fact that a petition was numbered and notice ordered, would not straight away give rise to the inference that the Court intended to hear the petition on merits without reference to the security to be furnished. The question whether the Court intended to hear the petition on merits without security being furnished, has to be considered with reference to the facts of each case.

In the cases relied upon by the learned counsel for the appellant, the facts show that the petition was admitted and notice was ordered. Therefore the question of furnishing security at a later stage did not arise.

In the instant case the facts are different. Both the applications under Order 21 Rule 90 C. P. C. and its proviso were filed and notice was ordered in both petitions on the same date. This shows that the Court did not intend to admit the application E. A. 932/1973 straightaway security being furnished as directed in E. A. 931/73 in fact E.A. No. 931/73 was taken up earlier for hearing on 16-11-1973 and orders were passed on the said petition holding that the security offered was insufficient and accordingly dismissing the petition. The petitioner did not at that stage contend that there was no necessity for furnishing security on the ground that E. A. 932/1973 must be deemed to have been already admitted. When the petitioner himself offered security by filing the application E.A. 931/1973, he induced or invited the court to entertain the application E. A. 932/1973 subject to his furnishing security under the proviso to Order 21 Rule 90 C.P.C.

He cannot therefore now turn round and say that he need not furnish security or that the application E.A. 932/1973 could not be dismissed on the ground that security furnished by him was not sufficient. Thus, I hold that the lower Court was right in dismissing the application E. A. 932/1973. In the result, the appeal fails and is dismissed with costs.