Karuppana Gounder vs Velappa Naicker and Another

K.M. Natarajan, J.—This revision is directed against the order passed by the District Munsif, Palani, in E.A. 198 of 1987 in E.P. 199 of 1986 in O.S. 1385 of 1983, dismissing the application on the ground that notice of hearing was not given and security was not furnished. Learned counsel for the revision petitioner mainly submitted that in view of the decision of this Court rendered by Balasubrahmanyan, J. in Kannan v. Haji Abdul Rawood Sahib 1982 T.L.N.J. 502 in the law as at present stands in O. 21, R. 90, C.P.C., there is no provision at all for insisting upon a security being furnished by the judgment debtor as a precondition for his seeking to set aside the sale on the ground of material irregularity. According to him, the order of the lower court is erroneous and is liable to be set aside. On the other hand, the learned counsel for the decree holder drew my attention to the decision in Shanmughan v. Lakshmipati Naidu 100 L.W. 99 where S.A. Kader, J. considered the decision rendered by Balasubrahmanyan, J. (above quoted) and, disagreeing with the said decision, held that in view of the proviso to that section that was introduced by Madras Amendment, furnishing of security is necessary. On going through the said decision, I find that the learned Judge (S.A. Kader, J.) has elaborately discussed the decision in Kannan v. Haji Abdul Rawood,1982 T.L.N.J. 502 and held that Bala-subrahmanian, J. has proceeded to hold on the assumption that the said proviso was already in the Central Act and subsequently it was omitted. But, it was not so. On the other hand, so far O. 21, R. 90 of the Principal Act has not been touched by the Amending Act 104 of 1976 and the said rule stands as it was be fore the Amending Act. Hence S.A. Kader, J. came to the conclusion, after considering the decision in Ganpat Giri v. Second Addl. Dy. Judge, & another, 99 L.W. 481=1986-1-S.C.C. 61 regarding the effect of S. 97(1) of the Amending Act 104 of 1976, and the earlier Full Bench decision in Gunturu Sella Ramanjaneyalu v. Vishnubhotla Ramayya I.L. 1R. 914 Mad. 203=52 L.W. 906 (F.B.) that the Madras proviso to O. 21, R. 90 is not inconsistent with R. 90 of O. 21, of the Principal Act, and is not hit by S. 97(1) of the Amending Act 104 of 1976. I entirely agree with the view of S.A. Kader, J. The learned counsel for the revision petitioner submitted that in view of the conflicting decisions, the matter has to be referred to a Full Bench. I do not thing that it is necessary as the question arises in this case is whether the proviso to O. 21, R. 90 is inconsistent with the Amending Act. But, as observed by S.A. Kader, J., Balasubramanyan, J. has rendered the judgment on the assumption that the Madras Proviso is inconsistent with the Amending Act, which is not correct, since the Principal Act has not been touched so far as O. 21, R. 90 is concerned. Hence, the question of referring the matter to a Full Bench does not arise. Hence I am of the view that furnishing of security is absolutely necessary under O. 21, R. 90 for setting aside the sale. Next, it was contended by the learned counsel for the revision petitioner that though the matter was posted in the lower Court on 17.6.1987 for notice of hearing, the trial court without giving opportunity to the revision petitioner for service of notice and cutting forth his contentions about furnishing of security erred in dismissing the petition, and that since an opportunity was not given to the revision petitioner, the order passed by the Court below is to be set aside on that ground. 1 find some force in the said contention. The revision petitioner ought to have given an opportunity for effecting service of notice on the other side and of being heard of his furnishing security as required under the proviso, before ever the petition is dismissed.

In the result, the revision is allowed, the order passed by the Court below is set aside, and the matter is remitted back to the Court below which is directed to restore the petition, give opportunity to the revision petitioner to give notice of hearing to the other side and then to offer his explanation and to show cause about the furnishing of security and then dispose of the same within four weeks from the date of receipt of the order since the suit relates to the year 1983, positively. In the circumstances, there will be no order as to costs.