S K S Rajamani Nadar and anr Vs Tuticorin Small Scale Salt Manufacturers Association Through Its Secretary M S Arunachalam and anr - Citation 823932 - Court Judgment

Excerpt:
- s. jagadeesan, j.1. the petitioners are the defendants in o.s.no. 61 of 1984 on the file of the sub court, tuticorin. the suit was decreed for recovery of money. the plaintiff filed e.p.no., 55 of 1989 to execute the decree in order to recover the decree amount. in the execution proceedings, the property of the petitioners was brought to sale. in the court auction the property fetched the highest bid of rs. 1,50,000 and the successful bidder also deposited the entire sale consideration. the judgment-debtors filed a petition under order 21, rule 90, c.p.c. for setting aside the sale on various grounds. the judgment-debtors filed an application e.a.no. 1222 of 1991 to dispense with the furnishing of security. the said petition was dismissed by the executing court. aggrieved by the same, the present revision has been filed.2. the revision petition was heard by thanikkachalam, j. (as he then was). before the learned judge a contention was raised by the counsel for the petitioners that the proviso to order 21, rule 90, c.p.c. introduced by the madras high court by way of amendment stands repealed by virtue of section 97(1) of act 104 of 1976 (amended c.p.c.). even assuming that the said proviso is still in the statute, the same is being inconsistent with order 21, rule 90, c.p.c. the central act and as such the same cannot be enforced.3. the learned counsel for the petitioners relied upon the judgment reported in v. kannan v. haji abdul rawoof sahib 1982 t.n.l.j. 502, wherein it has been held that after passing of the amending act 104 of 1976 the judgment-debtor need not furnish security for entertaining a petition under order 21, rule 90, c.p.c. this view was reiterated in another judgment reported in k.v. janaki rama iyer v. radhakrishna chettiar and anr. (1988) 1 l.w. 6. the learned counsel for the petitioners also relied upon a judgment in ganpat giri v. iind additional district judge : [1986]1scr15 , for this proposition that the proviso to order 21, rule 90, c.p.c. has been repealed by virtue of the act 104 of 1976.4. on the contrary, the learned counsel for the respondent relied upon the judgment in a. shanmugham v. lakshmipathy naidu and anr. : air1988mad42 , wherein a single judge of this court held that the furnishing of a security is necessary before admitting an application filed under order 21, rule 90, c.p.c. and this provision is unaffected by section 97(1) of the amending act 104 of 1976. the learned judge relied upon the judgment in ganpat giri v. iind additional district judge : [1986]1scr15 , which was relied upon by the counsel for the petitioners also. the learned judge also relied upon the full bench judgment of this court reported in gunturu ramanjaneyulu v. vishabubotla ramayya : air1941mad28 . this view was reiterated in another judgment in karuppanna gounder v. velappa naicker and anr. (1988) 1 l.w. 18.5. in view of the conflicting views, thanikkachalam, j., (as he then was) has directed the registry to place the papers before the hon'ble chief justice by his order dated 18.6.1993 with a request to constitute a full bench to answer the following question:whether an application filed under order 21, rule 90, c.p.c. to set aside the sale can be entertained without furnishing security as contemplated under proviso to order 2.1, rule 90, c.p.c. in view of section 97(1) of the amending act 104 of 1976?in view of the reference, the revision is posted before us.6. at the outset it is worthwhile to refer to the provision order 21, rule 90, c.p.c. under the old code (act 5 of 1908) which is as follows:rule 90: application to set aside sale on ground of irregularity or fraud: (where any immovable properly has been sold in execution of a decree, the decree-bolder or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it, provided that no sale shall be set aside, on the ground 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.7. the madras high court amendment to this rule was introduced on 30.10.1936 which is as follows:(high court amendment (madras) -- after the first paragraph and before the present proviso to the rule, insert the following-provided that the court may, after giving notice to the applicant, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever is less or to deposit such amount in court: provided also that the security furnished or the deposit made as aforesaid, shall be liable to be proceeded against only to the extent of the deficit on a re-sale of the property already brought to sale.8. in the present proviso after the word, 'provided' insert the word 'further'.order 21, rule 90 was amended by the amending act 106 of 1976 which is as follows:90. application to set aside sale on ground of irregularity of fraud: (1) where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.(2) no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.(3) no application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.explanation: the mere absence of, or defect, in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.9. from the above provision it is clear that order 21, rule 90(1), c.p.c. is identical with the old rule. only the words 'or the purchaser' have been added, thereby giving right to the auction purchaser also to file an application for setting aside the sale. order 21, rule 90(2) is identical to the proviso to the old rule. the amendment made by the madras high court is only additional proviso to the old rule.10. it is the contention of the learned counsel for the petitioners that order 21, rule 90(1) gives an absolute right to the applicant to file an application for setting aside the sale without any condition, whereas the proviso introduced by way of amendment by the madras high court imposes a restriction on the applicant to furnish security before admitting the application and as such the provision introduced by the madras high court is inconsistent with the central act 104 of 1976 and as such the same is to be struck down.11. it is the further contention of the learned counsel for the petitioners that section 97(1) of act 104 of 1976 which repeals the high court amendments except in so far as much amendment or provision is consistent with the provision of the principal act. the said rule is as follows:any amendment made, or any provision inserted in the principal act by a state legislature or a high court before the commencement of this act shall, except in so far as such amendment or provision is consistent with the provisions of the principal act as amended by this act, stand repealed.12. the above provision clearly reveals that it gives an exemption for those provisions which are consistent with the principal act. in view of section 97(1), the madras high court amendment introducing the proviso to order 21, rule 90 would stand repealed, since it is not consistent with the principal act.13. as stated already the provision order 21, rule 90 of the principal act do not impose any restriction regarding furnishing of security as such; whereas the proviso introduced by way of amendment by the madras high court imposes the restriction of furnishing security for admitting an application for setting aside the sale under order 21, rule 90, c.p.c. hence the proviso shall stand repealed, if not, the same cannot be enforced, as it is unconstitutional and ultra vires, since it is inconsistent with the principal act.14. now we shall refer to the judgments relied on by the counsel for the petitioners. in the judgment reported in kannan v. haji abdul rawoof sahib 1982 t.n.l.j. 502, it has been held as follows:it is not disputed that section 97(3) has the effect of a general repeal of all high court amendments to the civil procedure code excepting those which are consistent with the civil procedure code as amended by amending act 104 of 1976. the inquiry therefore, is whether the provision in the high court rule insisting upon the furnishing of security as a pre-condition for admission of the application under order 21, rule 90 can be said to be consistent with the amended order 21, rule 90 as it exists after act 104 of 1976. the requirement as to furnishing of security imposes an erroneous burden on the judgment-debtor. the proviso passed by the high court in order 21, rule 90 says that the security must be for an amount equal to that mentioned in the sale warrant or, where the sale had taken place, equal to that realisation by the sale whichever is less. the proviso also lays down that such security must be furnished to the satisfaction of the court. as an alternative to furnishing the security the judgment-debtor must deposit the amounts into court. all these conditions are to be satisfied or to be fulfilled by the judgment-debtor even before his application under order 21, rule 90 is admitted. these onerous requirements are now gone by the board by a sheer non mention in the rule as amended and re-enacted by the parliament. i fail to see how in these circumstances the rule passed by this court can be as being read 'consistent' with the principal act as amended by amending act 104 of 1976. the conclusions is that the proviso the order 21, rule 99 stands repealed by section 97(3) of act 104 of 1976.15. yet another judgment relied upon by the counsel for the petitioners is reported in janakirama iyer v. radhakrishna chettiar (1988) 1 l.w. 6, wherein padmini jesudurai, j. (as she then was) has held as follows:the andhra pradesh high court had occasion to go into this aspect in d. venugopal reddy v. smt. chilia lakmikantham 1983 a.w.r. 130, wherein a single judge of that court has taken the view that the madras amendment to rule 90 requiring furnishing of security is inconsistent with section 90 as it stands after the amendment. the learned judge finds support for his conclusion from the fact that, rule 90 after the amendment confers an unqualified and absolute right on the appellant seeking to set aside a court sale and that it could not be taken that the parliament intended that such a right of the applicant should be clogged by imposition of precondition like furnishing security. it is also significant to note that, even according to the high court amendment, requiring the applicant to furnish security was not mandatory but was left to the discretion of the executing court when the legislature introduced rule 90 as it now stands, it obviously meant to take away even this discretion from the executing court and had therefore not incorporated the same in rule 90 introduced by the amending act. when the legislature by the amending act had chosen to give an unfettered right to the applicant subject only to the limitation imposed by rule 90 itself, viz., proof of material irregularity or fraud, resulting in substantial injury, any amendment seeking to fetter the rights of the applicant by introducing any fresh limitation like requiring furnishing of security should be taken to be inconsistent with the amending act. just as seeking permission of the executing court before a decree holder could bid in court auction as contained in the local amendment in u.p. was found to be inconsistent with rule 72, which did not require any such permission, requiring the applicant to furnish security should be taken to be inconsistent with rule 90 which does not contemplate any such requirement. i am in agreement with the view expressed by the single judge of the andhra pradesh high court in venugopal reddi v. chilia lakshmikantham 1983 a.w.r. 130, that the amendment to rule 90 introduced by this court on 30.10.1936 under section 122, c.p.c. stands repealed by the amending act.the learned judge virtually relied upon the judgment reported in venugopal reddy v. chilia lakshmikantham 1983 a.w.r. 130.16. the learned counsel for the respondent relied upon the judgment reported in shanmugahm v. lakshmipathy naidu : air1988mad42 , wherein s.a. kader, j., differed with the view taken by balasubramanyan, j in his judgment reported in kannan v. haji abdul rawoff sahib 1982 t.n.l.j. 502 in the following words:i shall now refer to the full bench decision of this court in gunturu seeta ramanjaneyalu v. vishbubotla ramayya i.l.r. 1941 mad. 203 : a.i.r. 1941 mad. 26, where the vires of the madras proviso to order 21, rule 90, c.p.c. came up for consideration. the appellant therein filed an application to set aside the court auction sale on the ground of material irregularity. the district munsif of masulipatinam ordered the appellant to enter into a security bond in the amount for which the property had been sold acting under the madras proviso to order 2, rule 90. as the security was found unsatisfactory, the court ordered the appellant to deposit the amount into court in cash if he wished to proceed with his application. the appellant failed to deposit the amount within the time allowed and consequently the district munsif dismissed the application. when the matter came up before the full bench the validity of the madras proviso was challenged. the madras proviso originally, ran as follows:provided that the court may before admitting the application call upon the applicant either to furnish the security to the satisfaction of the court for an amount equal to that mentioned by the sale warrant or that realised by the sale whichever is less, or to deposit such amount in court.in order to avoid any misunderstanding as to whether the applicant must be heard before he is directed to furnish security, the proviso was referred in 1937 as follows: 'provided that, the court may, after giving notice to the applicant, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale whichever is less or to deposit such amount in court.as pointed out by the full bench, this amended proviso put it beyond doubt that opportunity must be given to the applicant of showing cause before an order requiring security is passed against him. according to the full bench, even before this amendment, the proviso as it stood should be read as giving a right to the applicant to be heard on the matter of security and the opportunity had been given to the applicant in that case by the district munsif of masulipatinam. it was contended before the full bench that the court had no power in any circumstances to require security to be furnished, even where his application to set aside the sale was entirely, unwarranted. the full bench observed:that is an agreement which we are not prepared to accept. a person has a right of being heard but once he has been heard, the court can put him on terms before allowing him to proceed further with such a matter. we hold that the rule as it stood in 1937 was intra virce the court and that therefore the district munsif has power to pass the orders which he did on 26th june and 19th august, 1937,' more so, in the case of the amended proviso which makes it explicit that an opportunity must be given to the applicant before directing him to furnish security.for the foregoing reasons i hold that the madras proviso to order 21, rule 90 is not inconsistent with rule 90 of order 21 of the principal act and is not hit by section 97(1) of the amending act 104 of 1976.17. in another judgment reported in karuppanna gounder v. velappa naicker (1988) 1 l.w. 18, k.m. natarajan, j., accepted the view taken by s.a. kadar, j. and held as follows:on the other hand, the learned counsel for the decree holder drew my attention to the decision in shanmugham v. lakshmipathy naidu : air1988mad42 , 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 rawoff 1982 t.n.l.j. 502 and held that balsubrahmanyan, 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 order 21, rule 90 of the principal act has not been touched by the amending act 104 of 1976 and the said rule stands as it was before the amending act. hence s.a. kader, j came to the conclusion, after considering the decision in ganpat giri v. iind additional district judge : [1986]1scr15 , regarding the effect of section 97(1) of the amending act 104 of 1976, and the earlier full bench decided gunturu seeta ramanjaneyalu v. vishbubotla ramayya i.l.r. 1941 mad. 203 : a.i.r. 1941 mad. 26, that the madras proviso to rule 90 is not inconsistent with rule 90 of 0.21 of the principal act, and is not hit by section 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 mater has to be referred to a full bench. i do not think that it is necessary as the question arises in this case is whether the proviso order 21, rule 90 is inconsistent with the amending act. but, as observed by s.a. kadar, j, balasubrahmanyan, 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 born touched so far as order 21, rule 99 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 order 21, rule 90 for setting aside the sale.in view of the above conflicting decisions, the matter is now before us on reference.18. the question to be answered is whether the amendment made by the madras high court to order 21, rule 90, c.p.c. by way of proviso is inconsistent with or repugnant to the main rule of order 21, rule 90, c.p.c.19. even though thanikkachalam, j. (as he then was) has referred this matter or the full bench by order dated 18.6.1993, the learned judge on a subsequent occasion sat with chief justice k.a. swami and dealt with the same question in the judgment reported in ramasway gounder v. t.s. ramaswamy gounder : (1995)2mlj413 . the learned judges have discussed the above referred judgments with contradictory views. the learned judges also considered the principles laid down in the judgment of the supreme court reported in ganpat giri v. ii additonal district judge 99 l.w. 481 : : [1986]1scr15 and ultimately the learned judges disagree with the view expressed in the decision reported in v. kannan v. haji abdul rawoof sahib 1982 t.l.n.j. 502 and janakirama iyer v. radhakrishna chettiar (1988) 1 l.w. 6 in the following terms:therefore, now, we shall examine whether the proviso is in any way inconsistent with rule 90, order 21, code of civil procedure. it may be pointed out here that the proviso does not in any way alter the conditions laid down in sub-rules (1), (2) and (3) and the explanation thereto of rule 90, order 21, code of civil procedure, as substituted by amending act 104 of 1976. the proviso only provides that the court may, after notice to the applicant seeking to set aside the sale, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to the mentioned in the sale warrant or to that realised by the sale whichever is less or to deposit such amount in court. this proviso only enables the court at the initial stage after hearing the applicant to find out whether there is a prima facie case for setting aside the sale or not and if that be so, whether in the facts and circumstances, there is a case for directing any security, the proviso does not lay down that in every case, it is incumbent upon the court to insist upon furnishing of security to the satisfaction of the court of depositing of the amount as stated therein, nor does it make it as a condition precedent for filing an application for setting aside the sale, the security should be furnished. the proviso contains a very salutary rule, it is intended to prevent frivolous applications to delay the execution. it is well known that the real trouble of the decree-holder commences only after he obtains the decree and puts into execution. it is also well known that the execution proceedings are the paradise for the members of the bar. it is also well known that there are very few decree-holders, who are fortunate to execute and realise the decree during their lifetime. such is the law governing the execution proceedings and if that be so, there is no doubt that there would be number of frivolous applications filed for setting aside the sale and it is to prevent such applications and to enable the court at the initial stage to apply its mind to find out whether there is a prima facie case for setting aside the sale and if that be so whether in the facts and circumstances of the case, it is necessary to order security. such a rule cannot be held to be inconsistent with the provisions contained in rule 90, order 21, code of civil procedure as substituted by act 104 of 1976. the grounds prescribed for setting aside the sale and the procedure to be followed for setting aside the sale are not in any manner effected by the proviso. therefore, we are of the view that looked at form any point of view, the proviso cannot be held to be inconsistent with rule 90, order 21, code of civil procedure, as substituted by act 104 of 1976 - consequently we find it difficult to agree with the decisions in v. kannan v. haji abdul rawoof sahib 1982 t.n.l.j. 502 and janakirama iyer v. ramakrishna chettiar (1988) 1 l.w. 6.from the abovesaid principle, the learned judges have held that the proviso introduced by the madras high court to order 21, rule 90., c.p.c. is not inconsistent with the main rule.20. even on an earlier occasion a full bench of this court happened to consider the question as to whether the proviso introduced by the madras high court to order 21, rule 90, c.p.c. is ultra vires in the judgment reported in gunturu seeta ramanjaneyulu v. vishnuhota ramayya : air1941mad28 . the very same contention which is raised herein was also raised before the earlier full bench contending that the proviso empowers the court to call upon the applicant either to furnish security or deposit the amount before admitting the application and as such an order requiring security might be passed without even hearing the applicant which is highly unjust, as under the rule making power the high court cannot abridge the rights of parties given by the legislature.the court has held as follows:the court has full power to regulate, its procedure, but that does not mean that a man may not be heard at all until security is furnished by him. under order 21, rule 90, as originally framed by this court, security could be required before the application was admitted. that did not mean, however, that an order requiring security might be passed without hearing the person affected by the order. in fact it would be wrong of a court to pass any such order without hearing the applicant. in order to prevent any misunderstanding as to the effect of the first proviso to order 21, rule 90, this court has re-framed it and the proviso new reads as follows:provided that the, court may, after giving notice to the applicant, call upon him, before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever, is less or to deposit such amount in court.this puts in beyond all controversy that an opportunity must be given to an applicant of showing cause before an order requiring security is passed against him.21. in view of the above judgments, we think the matter is concluded. but however, the learned counsel for the petitioners seized this opportunity to put forth his contention, taking advantage of the constitution of the full bench and contended that the division bench of this court reported in ramaswamy gounder v. ramaswamy gounder : (1995)2mlj413 , has to be reconsidered. the learned counsel draw out attention to the judgment reported in ganpat giri v. iind additional district judge : [1986]1scr15 , which was relied upon by padmini jesudurai, j., in the judgment reported in janakirama iyer v. radhakrishna chettiar, (1988) 1 l.w. 6. in. fact this judgment has also been considered by a division bench of this court reported in ramaswamy gounder v. ramaswamy gounder : (1995)2mlj413 . the learned supreme court judges considered the validity of allahabad high court amendment of rule 72 of order 21, c.p.c. in view of the amended act and 104 of 1976. the allahabad high court held that the amendment of rule 72 of order 21 of the allahabad high court was in existence prior to the amended c.p.c. and as there was no amendment subsequent to act 104 of 1976, it was held the amendment is valid. the learned judges of the supreme court held that even though there was no amendment to rule 72 of order 21, c.p.c. subsequent to the amending act 104 of 1976 still if the existing provision is inconsistent with the provisions of the amending act, then the same is deemed to have been repealed. in that case the learned judges on an interpretation of rule 72 of order 21, c.p.c. held that is inconsistent with the provisions of the amending act and as such held the same is invalid which is clear from the following passage of the said judgment is paragraph 13:now reverting to section 97(1) of the amending act, the high court was in error in holding that because no amendment has been made to rule 72 by the amending act. section 97(1) had no effect on the rule as it was in force in the state of uttar pradesh before the commencement of the amending act. as observed earlier, the effect of section 97(1) is that all local amendments made to any of the provisions of the code either by a state legislature or by a high court which were inconstant with the code as amended by the amending act stood repealed irrespective of the fact whether the corresponding provision in the code had been amended or modified by the amending act and that was subject only to what was found in sub-section (2) of section 97. sub-section (3) of section 97 provides that save as otherwise provided in sub-section (2) the provisions of the code as amended by the amending act shall apply to every suit, proceeding, appeal or application pending at the commencement of the amending act or instituted or filed after such commencement notwithstanding the fact that the right of cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had occurred before such commencement. sub-section (3) of section 97 sets at rest doubts, if any, by making the code as amended by the amending act applicable to all proceedings referred to therein subject to sub-section (2) of section 97.22. in fact, in that case, the supreme court was called upon to consider the effect of section 97 of the amending act on any amendment made or any provision inserted in the code of civil procedure, 1908 by a legislature or a high court prior to the commencement of the amending act i.e., prior to 1st february, 1977. the learned judges of the supreme court have held that rule 72 of order 21, c.p.c. is inconsistent with the amending act 104 of 1976, the principal act in the following words:the difference between the code and the rule as it was in force in the state of uttar pradesh prior to the commencement of the amending act was that in the state of uttar pradesh sub-rules (1) and (3) of rule 72 of order 21 had been completely deleted and sub-rule (2) had been renumbered as rule 72 with the modification that for the words 'with such permission' the words 'the property held' had been substituted. the result was that in the case of decree-holder the need for obtaining the express permission of the executing court before offering the bid for or purchasing the property, put up for sale under sub-rule (1) was not there and the power of the court to set aside the sale under sub-rule (3) of rule 72 in the absence of such permission had also been taken away.23. it has to be considered here whether the proviso introduced by the high court in the present case is inconsistent with main provisions order 21, rule 90, c.p.c.24. it may be worth to refer two judgments of the supreme court to consider the words ' inconsistency' and 'repugnancy' and when a provision can be said so. article 254 of the constitution of india deals within the situation where the central as well as the state law exist in the same field. the learned judges of the supreme court had dealt with the matter in detail in the judgment reported in gauri shaekar gaur v. state of u.p. : air1994sc169 , as follows:there is no doubt or difficulty as to applicability of the law under article 254 of the constitution. as to what would happen in a case of conflict between a central and state law occupying the same field enumerated in the concurrent list, article 254 was enacted to solve that conflict. article 254(1) envisages the normal rule that in the event of a conflict between the law made by the union and the state legislature in the concurrent field, the former prevails over the latter if the law relating to the concurrent subject made by the state legislature is repealed by union law, whether union law is prior or later in point of time, the union law will prevail and the state law shall, to the extent of such repugnancy, be void. an exception has been engrafted to this rule by clause (2) thereof, namely, if the state law has been reserved for consideration and the president gives assent to a state law, it will prevail notwithstanding its repugnancy to a earlier law made by the union, though both laws are dealing with a concurrent subject occupying the same field but operate in a collision course. the assent obtained from the president to the state act which is inconsistent with the union law prevails in that state and overrides the provisions of the union law in its application to that state only - however, if the parliament, in exercising its power under the proviso to article 254(2) makes a law adding, amending of repealing the union law, predominance secured by the state law by the assent of the president is taken away and the repugnant state law though it became valid by virtue of presidents' assent, would be void either directly or by its repugnance with respect to the same matter. the parliament may not expressly repeal the state law and by necessary implication the state law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the parliament creating repugnancy is made.25. in the judgment reported in bismikhan v. salma begam : [1995]3scr1062 , the learned judge had an occasion deal with section 97(1) of the amended act 104 of 1976. while considering the validity of rule 5 of order 15, c.p.c. as amended by u.p. civil laws (reforms and amendment) act, 1976 which provision deals with the striking off defence on failure to deposit admitted rent. the learned judges discussed and held as follows:the central act was enacted pursuant to the recommendation made by the law commission of india. the central act is an amending act as its title itself unmistakably indicates. in order 15, the central act amended only rule 2, but rules 3 and 4 remain unamended. the u.p. act added rule 5 to get over the inequilibirum created by recalitrant tenants, giving an opportunity to the defaulting tenants to pay the admitted rent pending suit at the pain of striking down the defence.the question, therefore, is whether rule 5 of order is inconsistent with the central act and thereby became void under article 254(1) of the constitution? entry 13 of the concurrent list of the seventh schedule to the constitution, namely, civil procedure, including all - matters included in the code of civil procedure empowers parliament and the legislature of the state to make or amend the law in that behalf. the legislature of the state has power to amend sections as well as schedules to the code while a high court is empowered to amend the orders on the schedules. the central act being an amending act to the code of civil procedure act, 1908 (5 of 1908), existing at the commencement of the constitution, appropriate amendments are permissible. article 154(1) envisages that,if any provision of a law made by the legislature of a state is repugnant to any provision of a law made by parliament which parliament is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then subject to the provisions of clause (2), the law made by parliament, whether passed before or after the law made by the legislature of such state, or as the case may be, the existing law shall prevail and the law made by the legislature of the state shall, to the extent of the repugnancy, be void.clause (2) of article 254 is an exception to clause (1) which adumbrates that where a law made by the legislature of a state with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provision of an earlier law made by parliament or an existing law with respect to that matter, then, the law so made by the legislature of such state shall, if it has been reserved for the consideration of the president and has received his assent, prevail in the state, provided that nothing in this clause shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding or amending, varying or repealing the law so made by the legislature of the state.the condition precedent to bring about repugnancy should be that there must be an amendment made to the principal act under the central act and the previous amendment made by a state legislature or a provision made by a high court must occupy the same field and operate in a collision course. since the state act is incorporated by act 37 of 1972 and the explanations to rule 5 by act 57 of 1976, rule 5 was not occupied by the central act in relation to the state of u.p., they remain to be a valid law. we may clarify at once that if the central law and the state law or a provision made by the high court occupy the same filed and operate in collision course, the state act or the provision made in the order by a high court being inconsistent with or in other words being incompatible with the central act, it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the president after the central act was made by parliament i.e., 10.9.1976.it is true that inconsistency or incompatibility of the operation of the central act and the state act would also arise after the respective acts are brought into force and such state act must be prior in point of time to the central act. we have already found that the point of time is with reference to making the law as envisaged in article 254 and not when the central act had come into force. accordingly we hold that there is no inconsistency in the operation of rule 5 of order 15 since the same is not occupied by the central act or act 5 of 1908 and that, therefore, it did not become void.26. from the discussions made in the above two judgments, it is clear that the rule introduced by the state legislature or the high court in the c.p.c. can be said to be inconsistent or repugnant only if such rule would occupy the same field and operate in a collision course. if the amendment introduced by the state or the high court is not occupied the field already occupied by the central government, then such provision is valid law.27. as already stated, the division bench of this court has held in the judgment, reported in ramaswamy gounder v. ramaswamy gounder : (1995)2mlj413 , that the proviso does not lay down that in every case it is incumbent upon the court to insist upon furnishing security to the satisfaction of the court or deposit of the amount as stated therein, nor does it make it as a condition precedent for filing an application for setting aside the sale. the provision had been introduced as a salutary rule in order to avoid any frivolous application. the court has been given the discretion to call for the applicant to furnish security or deposit the amount in a given case and that too, after giving the applicant an opportunity to submit his explanation as to why he should not be directed to furnish security.28. hence the proviso contemplates two things, one is, it is not an absolute rule that in all cases the applicant has to furnish security or to deposit the amount, the other is the court has been given a discretionary power to call upon the applicant to furnish security or to deposit the amount if the court is not satisfied with the explanation given by the applicant as to why he should not be directed to furnish security.29. order 21, rule 90, c.p.c. empowers the applicant to file an application for setting aside the sale and that right is not taken away by the proviso introduced by the high court. similarly the central act do not prohibit the court from imposing any condition for entertaining the application. when there is no specific prohibition in the central act, the state act or provision can be interpreted to uphold the validity of the same, especially when the law is in the concurrent list of schedule vii of the constitution of india.30. yet another contention was raised by the counsel for the petitioner that the proviso cannot be interpreted to set at naught the rule and the object of the main enactment and the main function of the proviso is to carve exception to the main enactment. in this case, by virtue of the proviso the applicants are totally prevented from filing the application under order 21, rule 90, c.p.c., since the provision says that the court may call for the applicant to furnish security before admitting the application for setting aside the sale.31. we are not able to agree with the contention of the learned counsel for the petitioners. the proviso specifically mentions that the court can call for the applicant to furnish security or deposit the amount only after giving him a notice. so the applicants are entitled for an opportunity of hearing before any condition is imposed. if the court is satisfied with the explanation of the applicant, then there is no need for the court to impost any condition. if only the court finds the explanation of the applicant is unacceptable, then the court may impose condition. the word 'may' gives a discretion to impose the condition in a given case and this cannot be interpreted as if it is a mandatory rule and that whenever an application is filed under order 21, rule 90, civil procedure code, it is incumbent on the part of applicant to furnish security or deposit the amount. hence, under any circumstances, it cannot be construed that the proviso introduced by the high court to order 21, rule 90, c.p.c. can be said to be inconsistent with the main provision. we entirely agree with the view expressed by the learned judges of the division bench in the judgment in ramaswamy gounder v. ramasway gounder : (1995)2mlj413 , which requires no reconsideration.32.accordingly we hold that the proviso introduced by way of amendment by the madras high court to order 21, rule 90, civil procedure code is not inconsistent with the main rule and as such the same cannot be deemed to have been repealed view of section 97(1) of the amending act 104 of 1976. the imposing of condition is the discretion of the court and as such we answer the question referred to the effect that the application filed under order 21, rule 90, civil procedure code to set aside the sale can be entertained without furnishing security as contemplated under proviso to order 21, rule 90, civil procedure code irrespective of section 97(1) of act 104 of 1976 in a given case depending upon the facts and circumstances of that particular case.33. in this case, the lower court has taken into consideration of the petitioners for imposing condition and as such we are of the opinion that the order of the lower court has to be confirmed. there is no need to send back the matter to the single judge to decide the case on merit. accordingly the civil revision petition is dismissed. after the pronouncement of the order, learned counsel for the petitioners mr. v. shanmugham represents that there are two other grounds to be urged in the civil revision petition and hence, the matter may be posted before the learned single judge for further arguments. we accordingly direct the matter to be posted before the learned single judge. in the last paragraph of the order, we have said that the lower court has taken into consideration the conduct of the petitioners for imposing condition. however, we leave that question to the learned single judge to be decided in accordance with law.

Judgment:

S. Jagadeesan, J.

1. The petitioners are the defendants in O.S.No. 61 of 1984 on the file of the Sub Court, Tuticorin. The suit was decreed for recovery of money. The plaintiff filed E.P.No., 55 of 1989 to execute the decree in order to recover the decree amount. In the execution proceedings, the property of the petitioners was brought to sale. In the court auction the property fetched the highest bid of Rs. 1,50,000 and the successful bidder also deposited the entire sale consideration. The judgment-debtors filed a petition under Order 21, Rule 90, C.P.C. for setting aside the sale on various grounds. The judgment-debtors filed an application E.A.No. 1222 of 1991 to dispense with the furnishing of security. The said petition was dismissed by the executing court. Aggrieved by the same, the present revision has been filed.

2. The revision petition was heard by Thanikkachalam, J. (as he then was). Before the learned Judge a contention was raised by the counsel for the petitioners that the Proviso to Order 21, Rule 90, C.P.C. introduced by the Madras High Court by way of amendment stands repealed by virtue of Section 97(1) of Act 104 of 1976 (amended C.P.C.). Even assuming that the said Proviso is still in the statute, the same is being inconsistent with Order 21, Rule 90, C.P.C. the Central Act and as such the same cannot be enforced.

3. The learned Counsel for the petitioners relied upon the judgment reported in V. Kannan v. Haji Abdul Rawoof Sahib 1982 T.N.L.J. 502, wherein it has been held that after passing of the Amending Act 104 of 1976 the judgment-debtor need not furnish security for entertaining a petition under Order 21, Rule 90, C.P.C. This view was reiterated in another judgment reported in K.V. Janaki Rama Iyer v. Radhakrishna Chettiar and Anr. (1988) 1 L.W. 6. The learned Counsel for the petitioners also relied upon a judgment in Ganpat Giri v. IInd Additional District Judge : [1986]1SCR15 , for this proposition that the Proviso to Order 21, Rule 90, C.P.C. has been repealed by virtue of the Act 104 of 1976.

4. On the contrary, the learned Counsel for the respondent relied upon the judgment in A. Shanmugham v. Lakshmipathy Naidu and Anr. : AIR1988Mad42 , wherein a single Judge of this Court held that the furnishing of a security is necessary before admitting an application filed under Order 21, Rule 90, C.P.C. and this provision is unaffected by Section 97(1) of the Amending Act 104 of 1976. The learned Judge relied upon the judgment in Ganpat Giri v. IInd Additional District Judge : [1986]1SCR15 , which was relied upon by the counsel for the petitioners also. The learned Judge also relied upon the Full Bench judgment of this Court reported in Gunturu Ramanjaneyulu v. Vishabubotla Ramayya : AIR1941Mad28 . This view was reiterated in another judgment in Karuppanna Gounder v. Velappa Naicker and Anr. (1988) 1 L.W. 18.

5. In view of the conflicting views, Thanikkachalam, J., (as he then was) has directed the Registry to place the papers before the Hon'ble Chief Justice by his order dated 18.6.1993 with a request to constitute a Full Bench to answer the following question:

Whether an application filed under Order 21, Rule 90, C.P.C. to set aside the sale can be entertained without furnishing security as contemplated under Proviso to Order 2.1, Rule 90, C.P.C. in view of Section 97(1) of the Amending Act 104 of 1976?

In view of the reference, the revision is posted before us.

6. At the outset it is worthwhile to refer to the provision Order 21, Rule 90, C.P.C. under the old Code (Act 5 of 1908) which is as follows:

Rule 90: Application to set aside sale on ground of irregularity or fraud: (Where any immovable properly has been sold in execution of a decree, the decree-bolder or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it, provided that no sale shall be set aside, on the ground 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.

7. The Madras High Court amendment to this Rule was introduced on 30.10.1936 which is as follows:

(High Court Amendment (Madras) -- After the first paragraph and before the present Proviso to the rule, insert the following-Provided that the court may, after giving notice to the applicant, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever is less or to deposit such amount in court: Provided also that the security furnished or the deposit made as aforesaid, shall be liable to be proceeded against only to the extent of the deficit on a re-sale of the property already brought to sale.

8. In the present Proviso after the word, 'provided' insert the word 'further'.

Order 21, Rule 90 was amended by the Amending Act 106 of 1976 which is as follows:

90. Application to set aside sale on ground of irregularity of fraud: (1) where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this Rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation: The mere absence of, or defect, in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.

9. From the above provision it is clear that Order 21, Rule 90(1), C.P.C. is identical with the old Rule. Only the words 'or the purchaser' have been added, thereby giving right to the auction purchaser also to file an application for setting aside the sale. Order 21, Rule 90(2) is identical to the Proviso to the old Rule. The amendment made by the Madras High Court is only additional Proviso to the old Rule.

10. It is the contention of the learned Counsel for the petitioners that Order 21, Rule 90(1) gives an absolute right to the applicant to file an application for setting aside the sale without any condition, whereas the Proviso introduced by way of amendment by the Madras High Court imposes a restriction on the applicant to furnish security before admitting the application and as such the provision introduced by the Madras High Court is inconsistent with the Central Act 104 of 1976 and as such the same is to be struck down.

11. It is the further contention of the learned Counsel for the petitioners that Section 97(1) of Act 104 of 1976 which repeals the High Court amendments except in so far as much amendment or provision is consistent with the provision of the principal Act. The said Rule is as follows:

Any amendment made, or any provision inserted in the principal Act by a state Legislature or a High Court before the commencement of this Act shall, except in so far as such Amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

12. The above provision clearly reveals that it gives an exemption for those provisions which are consistent with the principal Act. In view of Section 97(1), the Madras High Court amendment introducing the Proviso to Order 21, Rule 90 would stand repealed, since it is not consistent with the principal Act.

13. As stated already the provision Order 21, Rule 90 of the principal Act do not impose any restriction regarding furnishing of security as such; whereas the Proviso introduced by way of amendment by the Madras High Court imposes the restriction of furnishing security for admitting an application for setting aside the sale under Order 21, Rule 90, C.P.C. hence the Proviso shall stand repealed, if not, the same cannot be enforced, as it is unconstitutional and ultra vires, since it is inconsistent with the principal Act.

14. Now we shall refer to the judgments relied on by the counsel for the petitioners. In the judgment reported in Kannan v. Haji Abdul Rawoof Sahib 1982 T.N.L.J. 502, it has been held as follows:

It is not disputed that Section 97(3) has the effect of a general repeal of all High Court amendments to the Civil Procedure Code excepting those which are consistent with the Civil Procedure Code as amended by Amending Act 104 of 1976. The inquiry therefore, is whether the provision in the High Court rule insisting upon the furnishing of security as a pre-condition for admission of the application under Order 21, Rule 90 can be said to be consistent with the amended Order 21, Rule 90 as it exists after Act 104 of 1976. The requirement as to furnishing of security imposes an erroneous burden on the judgment-debtor. The Proviso passed by the High Court in Order 21, Rule 90 says that the security must be for an amount equal to that mentioned in the sale warrant or, where the sale had taken place, equal to that realisation by the sale whichever is less. The Proviso also lays down that such security must be furnished to the satisfaction of the court. As an alternative to furnishing the security the judgment-debtor must deposit the amounts into court. All these conditions are to be satisfied or to be fulfilled by the judgment-debtor even before his application under Order 21, Rule 90 is admitted. These onerous requirements are now gone by the board by a sheer non mention in the rule as amended and re-enacted by the Parliament. I fail to see how in these circumstances the rule passed by this Court can be as being read 'consistent' with the principal Act as amended by Amending Act 104 of 1976. The conclusions is that the Proviso the Order 21, Rule 99 stands repealed by Section 97(3) of Act 104 of 1976.

15. Yet another judgment relied upon by the counsel for the petitioners is reported in Janakirama Iyer v. Radhakrishna Chettiar (1988) 1 L.W. 6, wherein Padmini Jesudurai, J. (as she then was) has held as follows:

The Andhra Pradesh High Court had occasion to go into this aspect in D. Venugopal Reddy v. Smt. Chilia Lakmikantham 1983 A.W.R. 130, wherein a single Judge of that Court has taken the view that the Madras Amendment to Rule 90 requiring furnishing of security is inconsistent with Section 90 as it stands after the amendment. The learned Judge finds support for his conclusion from the fact that, Rule 90 after the amendment confers an unqualified and absolute right on the appellant seeking to set aside a court sale and that it could not be taken that the parliament intended that such a right of the applicant should be clogged by imposition of precondition like furnishing security. It is also significant to note that, even according to the High Court amendment, requiring the applicant to furnish security was not mandatory but was left to the discretion of the executing court when the legislature introduced Rule 90 as it now stands, it obviously meant to take away even this discretion from the executing court and had therefore not incorporated the same in Rule 90 introduced by the Amending Act. When the legislature by the Amending Act had chosen to give an unfettered right to the applicant subject only to the limitation imposed by Rule 90 itself, viz., proof of material irregularity or fraud, resulting in substantial injury, any amendment seeking to fetter the rights of the applicant by introducing any fresh limitation like requiring furnishing of security should be taken to be inconsistent with the Amending Act. Just as seeking permission of the executing court before a decree holder could bid in court auction as contained in the local amendment in U.P. was found to be inconsistent with Rule 72, which did not require any such permission, requiring the applicant to furnish security should be taken to be inconsistent with Rule 90 which does not contemplate any such requirement. I am in agreement with the view expressed by the single Judge of the Andhra Pradesh High Court in Venugopal Reddi v. Chilia Lakshmikantham 1983 A.W.R. 130, that the amendment to Rule 90 introduced by this Court on 30.10.1936 under Section 122, C.P.C. stands repealed by the amending Act.

The learned Judge virtually relied upon the judgment reported in Venugopal Reddy v. Chilia Lakshmikantham 1983 A.W.R. 130.

16. The learned Counsel for the respondent relied upon the judgment reported in Shanmugahm v. Lakshmipathy Naidu : AIR1988Mad42 , wherein S.A. Kader, J., differed with the view taken by Balasubramanyan, J in his judgment reported in Kannan v. Haji Abdul Rawoff Sahib 1982 T.N.L.J. 502 in the following words:

I shall now refer to the Full Bench decision of this Court in Gunturu Seeta Ramanjaneyalu v. Vishbubotla Ramayya I.L.R. 1941 Mad. 203 : A.I.R. 1941 Mad. 26, where the vires of the Madras Proviso to Order 21, Rule 90, C.P.C. came up for consideration. The appellant therein filed an application to set aside the court auction sale on the ground of material irregularity. The District Munsif of Masulipatinam ordered the appellant to enter into a security bond in the amount for which the property had been sold acting under the Madras Proviso to Order 2, Rule 90. As the security was found unsatisfactory, the court ordered the appellant to deposit the amount into court in cash if he wished to proceed with his application. The appellant failed to deposit the amount within the time allowed and consequently the District Munsif dismissed the application. When the matter came up before the Full Bench the validity of the Madras Proviso was challenged. The Madras Proviso originally, ran as follows:

Provided that the court may before admitting the application call upon the applicant either to furnish the security to the satisfaction of the court for an amount equal to that mentioned by the sale warrant or that realised by the sale whichever is less, or to deposit such amount in court.In order to avoid any misunderstanding as to whether the applicant must be heard before he is directed to furnish security, the Proviso was referred in 1937 as follows: 'Provided that, the court may, after giving notice to the applicant, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale whichever is less or to deposit such amount in court.

As pointed out by the Full Bench, this amended Proviso put it beyond doubt that opportunity must be given to the applicant of showing cause before an order requiring security is passed against him. According to the Full Bench, even before this amendment, the Proviso as it stood should be read as giving a right to the applicant to be heard on the matter of security and the opportunity had been given to the applicant in that case by the District Munsif of Masulipatinam. It was contended before the Full Bench that the court had no power in any circumstances to require security to be furnished, even where his application to set aside the sale was entirely, unwarranted. The Full Bench observed:

That is an agreement which we are not prepared to accept. A person has a right of being heard but once he has been heard, the court can put him on terms before allowing him to proceed further with such a matter. We hold that the rule as it stood in 1937 was intra virce the court and that therefore the District Munsif has power to pass the orders which he did on 26th June and 19th August, 1937,' More so, in the case of the amended Proviso which makes it explicit that an opportunity must be given to the applicant before directing him to furnish security.For the foregoing reasons I hold that the Madras Proviso to Order 21, Rule 90 is not inconsistent with Rule 90 of Order 21 of the Principal Act and is not hit by Section 97(1) of the Amending Act 104 of 1976.

17. In another judgment reported in Karuppanna Gounder v. Velappa Naicker (1988) 1 L.W. 18, K.M. Natarajan, J., accepted the view taken by S.A. Kadar, J. and held as follows:

On the other hand, the learned Counsel for the decree holder drew my attention to the decision in Shanmugham v. Lakshmipathy Naidu : AIR1988Mad42 , 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 Rawoff 1982 T.N.L.J. 502 and held that Balsubrahmanyan, 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 Order 21, Rule 90 of the principal Act has not been touched by the Amending Act 104 of 1976 and the said rule stands as it was before the Amending Act. Hence S.A. Kader, J came to the conclusion, after considering the decision in Ganpat Giri v. IInd Additional District Judge : [1986]1SCR15 , regarding the effect of Section 97(1) of the Amending Act 104 of 1976, and the earlier Full Bench decided Gunturu Seeta Ramanjaneyalu v. Vishbubotla Ramayya I.L.R. 1941 Mad. 203 : A.I.R. 1941 Mad. 26, that the Madras Proviso to Rule 90 is not inconsistent with Rule 90 of 0.21 of the Principal Act, and is not hit by Section 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 mater has to be referred to a Full Bench. I do not think that it is necessary as the question arises in this case is whether the Proviso Order 21, Rule 90 is inconsistent with the Amending Act. But, as observed by S.A. Kadar, J, Balasubrahmanyan, 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 born touched so far as Order 21, Rule 99 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 Order 21, Rule 90 for setting aside the sale.

In view of the above conflicting decisions, the matter is now before us on reference.

18. The question to be answered is whether the amendment made by the Madras High Court to Order 21, Rule 90, C.P.C. by way of Proviso is inconsistent with or repugnant to the main rule of Order 21, Rule 90, C.P.C.

19. Even though Thanikkachalam, J. (as he then was) has referred this matter or the Full Bench by order dated 18.6.1993, the learned Judge on a subsequent occasion sat with Chief Justice K.A. Swami and dealt with the same question in the judgment reported in Ramasway Gounder v. T.S. Ramaswamy Gounder : (1995)2MLJ413 . The learned Judges have discussed the above referred judgments with contradictory views. The learned Judges also considered the principles laid down in the judgment of the Supreme Court reported in Ganpat Giri v. II Additonal District Judge 99 L.W. 481 : : [1986]1SCR15 and ultimately the learned Judges disagree with the view expressed in the decision reported in V. Kannan v. Haji Abdul Rawoof Sahib 1982 T.L.N.J. 502 and Janakirama Iyer v. Radhakrishna Chettiar (1988) 1 L.W. 6 in the following terms:

Therefore, now, we shall examine whether the Proviso is in any way inconsistent with Rule 90, Order 21, Code of Civil Procedure. It may be pointed out here that the Proviso does not in any way alter the conditions laid down in Sub-rules (1), (2) and (3) and the explanation thereto of Rule 90, Order 21, Code of Civil Procedure, as substituted by Amending Act 104 of 1976. The Proviso only provides that the court may, after notice to the applicant seeking to set aside the sale, call upon him before admitting the application either to furnish security to the satisfaction of the court for an amount equal to the mentioned in the sale warrant or to that realised by the sale whichever is less or to deposit such amount in court. This Proviso only enables the court at the initial stage after hearing the applicant to find out whether there is a prima facie case for setting aside the sale or not and if that be so, whether in the facts and circumstances, there is a case for directing any security, The Proviso does not lay down that in every case, it is incumbent upon the court to insist upon furnishing of security to the satisfaction of the court of depositing of the amount as stated therein, nor does it make it as a condition precedent for filing an application for setting aside the sale, the security should be furnished. The Proviso contains a very salutary rule, It is intended to prevent frivolous applications to delay the execution. It is well known that the real trouble of the decree-holder commences only after he obtains the decree and puts into execution. It is also well known that the execution proceedings are the paradise for the members of the Bar. It is also well known that there are very few decree-holders, who are fortunate to execute and realise the decree during their lifetime. Such is the law governing the execution proceedings and if that be so, there is no doubt that there would be number of frivolous applications filed for setting aside the sale and it is to prevent such applications and to enable the court at the initial stage to apply its mind to find out whether there is a prima facie case for setting aside the sale and if that be so whether in the facts and circumstances of the case, it is necessary to order security. Such a rule cannot be held to be inconsistent with the provisions contained in Rule 90, Order 21, Code of Civil Procedure as substituted by Act 104 of 1976. The grounds prescribed for setting aside the sale and the procedure to be followed for setting aside the sale are not in any manner effected by the Proviso. Therefore, we are of the view that looked at form any point of view, the Proviso cannot be held to be inconsistent with Rule 90, Order 21, Code of Civil Procedure, as substituted by Act 104 of 1976 - Consequently we find it difficult to agree with the decisions in V. Kannan v. Haji Abdul Rawoof Sahib 1982 T.N.L.J. 502 and Janakirama Iyer v. Ramakrishna Chettiar (1988) 1 L.W. 6.

From the abovesaid principle, the learned Judges have held that the Proviso introduced by the Madras High Court to Order 21, Rule 90., C.P.C. is not inconsistent with the main Rule.

20. Even on an earlier occasion a Full Bench of this Court happened to consider the question as to whether the Proviso introduced by the Madras High Court to Order 21, Rule 90, C.P.C. is ultra vires in the judgment reported in Gunturu Seeta Ramanjaneyulu v. Vishnuhota Ramayya : AIR1941Mad28 . The very same contention which is raised herein was also raised before the earlier Full Bench contending that the Proviso empowers the court to call upon the applicant either to furnish security or deposit the amount before admitting the application and as such an order requiring security might be passed without even hearing the applicant which is highly unjust, as under the Rule making power the High Court cannot abridge the rights of parties given by the legislature.

The court has held as follows:

The court has full power to regulate, its procedure, but that does not mean that a man may not be heard at all until security is furnished by him. Under Order 21, Rule 90, as originally framed by this Court, security could be required before the application was admitted. That did not mean, however, that an order requiring security might be passed without hearing the person affected by the order. In fact it would be wrong of a court to pass any such order without hearing the applicant. In order to prevent any misunderstanding as to the effect of the first Proviso to Order 21, Rule 90, this Court has re-framed it and the Proviso new reads as follows:

Provided that the, court may, after giving notice to the applicant, call upon him, before admitting the application either to furnish security to the satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever, is less or to deposit such amount in court.This puts in beyond all controversy that an opportunity must be given to an applicant of showing cause before an order requiring security is passed against him.

21. In view of the above judgments, we think the matter is concluded. But however, the learned Counsel for the petitioners seized this opportunity to put forth his contention, taking advantage of the constitution of the Full Bench and contended that the Division Bench of this Court reported in Ramaswamy Gounder v. Ramaswamy Gounder : (1995)2MLJ413 , has to be reconsidered. The learned Counsel draw out attention to the judgment reported in Ganpat Giri v. IInd Additional District Judge : [1986]1SCR15 , which was relied upon by Padmini Jesudurai, J., in the judgment reported in Janakirama Iyer v. Radhakrishna Chettiar, (1988) 1 L.W. 6. In. fact this judgment has also been considered by a Division Bench of this Court reported in Ramaswamy Gounder v. Ramaswamy Gounder : (1995)2MLJ413 . The learned Supreme Court Judges considered the validity of Allahabad High Court amendment of Rule 72 of Order 21, C.P.C. in view of the amended Act and 104 of 1976. The Allahabad High Court held that the amendment of Rule 72 of Order 21 of the Allahabad High Court was in existence prior to the amended C.P.C. and as there was no amendment subsequent to Act 104 of 1976, it was held the amendment is valid. The learned Judges of the Supreme Court held that even though there was no amendment to Rule 72 of Order 21, C.P.C. subsequent to the Amending Act 104 of 1976 still if the existing provision is inconsistent with the provisions of the Amending Act, then the same is deemed to have been repealed. In that case the learned Judges on an interpretation of Rule 72 of Order 21, C.P.C. held that is inconsistent with the provisions of the Amending Act and as such held the same is invalid which is clear from the following passage of the said judgment is paragraph 13:

Now reverting to Section 97(1) of the Amending Act, the High Court was in error in holding that because no amendment has been made to Rule 72 by the Amending Act. Section 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of Section 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconstant with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in Sub-section (2) of Section 97. Sub-section (3) of Section 97 provides that save as otherwise provided in Sub-section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right of cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had occurred before such commencement. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to Sub-section (2) of Section 97.

22. In fact, in that case, the Supreme Court was called upon to consider the effect of Section 97 of the Amending Act on any amendment made or any provision inserted in the Code of Civil Procedure, 1908 by a Legislature or a High Court prior to the commencement of the Amending Act i.e., prior to 1st February, 1977. The learned Judges of the Supreme Court have held that Rule 72 of Order 21, C.P.C. is inconsistent with the Amending Act 104 of 1976, the Principal Act in the following words:

The difference between the Code and the rule as it was in force in the State of Uttar Pradesh prior to the commencement of the Amending Act was that in the State of Uttar Pradesh Sub-rules (1) and (3) of Rule 72 of Order 21 had been completely deleted and Sub-rule (2) had been renumbered as Rule 72 with the modification that for the words 'with such permission' the words 'the property held' had been substituted. The result was that in the case of decree-holder the need for obtaining the express permission of the executing court before offering the bid for or purchasing the property, put up for sale under Sub-rule (1) was not there and the power of the court to set aside the sale under Sub-rule (3) of Rule 72 in the absence of such permission had also been taken away.

23. It has to be considered here whether the Proviso introduced by the High Court in the present case is inconsistent with main provisions Order 21, Rule 90, C.P.C.

24. It may be worth to refer two judgments of the Supreme Court to consider the words ' inconsistency' and 'repugnancy' and when a provision can be said so. Article 254 of the Constitution of India deals within the situation where the Central as well as the State Law exist in the same field. The learned Judges of the Supreme Court had dealt with the matter in detail in the judgment reported in Gauri Shaekar Gaur v. State of U.P. : AIR1994SC169 , as follows:

There is no doubt or difficulty as to applicability of the law under Article 254 of the Constitution. As to what would happen in a case of conflict between a Central and State law occupying the same field enumerated in the concurrent list, Article 254 was enacted to solve that conflict. Article 254(1) envisages the normal rule that in the event of a conflict between the law made by the Union and the State Legislature in the concurrent field, the former prevails over the latter if the law relating to the concurrent subject made by the State Legislature is repealed by Union law, whether Union law is prior or later in point of time, the Union law will prevail and the state law shall, to the extent of such repugnancy, be void. An exception has been engrafted to this rule by Clause (2) thereof, namely, if the state law has been reserved for consideration and the President gives assent to a state law, it will prevail notwithstanding its repugnancy to a earlier law made by the Union, though both laws are dealing with a concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President to the State Act which is inconsistent with the Union Law prevails in that State and overrides the provisions of the Union law in its application to that state only - However, if the Parliament, in exercising its power under the Proviso to Article 254(2) makes a law adding, amending of repealing the Union Law, predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of Presidents' assent, would be void either directly or by its repugnance with respect to the same matter. The Parliament may not expressly repeal the state law and by necessary implication the state law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made.

25. In the judgment reported in Bismikhan v. Salma Begam : [1995]3SCR1062 , the learned Judge had an occasion deal with Section 97(1) of the amended Act 104 of 1976. While considering the validity of Rule 5 of Order 15, C.P.C. as amended by U.P. Civil Laws (Reforms and Amendment) Act, 1976 which provision deals with the striking off defence on failure to deposit admitted rent. The learned Judges discussed and held as follows:

The Central Act was enacted pursuant to the recommendation made by the Law Commission of India. The Central Act is an Amending Act as its title itself unmistakably indicates. In Order 15, the Central Act amended only Rule 2, but Rules 3 and 4 remain unamended. The U.P. Act added Rule 5 to get over the inequilibirum created by recalitrant tenants, giving an opportunity to the defaulting tenants to pay the admitted rent pending suit at the pain of striking down the defence.

The question, therefore, is whether Rule 5 of order is inconsistent with the Central Act and thereby became void under Article 254(1) of the Constitution? Entry 13 of the Concurrent List of the Seventh schedule to the Constitution, namely, Civil Procedure, including all - matters included in the Code of Civil Procedure empowers Parliament and the Legislature of the State to make or amend the Law in that behalf. The Legislature of the State has power to amend Sections as well as schedules to the Code while a High Court is empowered to amend the orders on the Schedules. The Central Act being an Amending Act to the Code of Civil Procedure Act, 1908 (5 of 1908), existing at the commencement of the Constitution, appropriate amendments are permissible. Article 154(1) envisages that,

If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such state, or as the case may be, the existing law shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void.

Clause (2) of Article 254 is an exception to Clause (1) which adumbrates that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provision of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State, provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding or amending, varying or repealing the law so made by the Legislature of the State.

The condition precedent to bring about repugnancy should be that there must be an amendment made to the Principal Act under the Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act is incorporated by Act 37 of 1972 and the Explanations to Rule 5 by Act 57 of 1976, Rule 5 was not occupied by the Central Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central law and the State law or a provision made by the High Court occupy the same filed and operate in collision course, the State Act or the provision made in the order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the President after the Central Act was made by Parliament i.e., 10.9.1976.

It is true that inconsistency or incompatibility of the operation of the Central Act and the State Act would also arise after the respective Acts are brought into force and such State Act must be prior in point of time to the Central Act. We have already found that the point of time is with reference to making the law as envisaged in Article 254 and not when the Central Act had come into force. Accordingly we hold that there is no inconsistency in the operation of Rule 5 of Order 15 since the same is not occupied by the Central Act or Act 5 of 1908 and that, therefore, it did not become void.

26. From the discussions made in the above two judgments, it is clear that the Rule introduced by the State Legislature or the High Court in the C.P.C. can be said to be inconsistent or repugnant only if such Rule would occupy the same field and operate in a collision course. If the amendment introduced by the State or the High Court is not occupied the field already occupied by the Central Government, then such provision is valid law.

27. As already stated, the Division Bench of this Court has held in the judgment, reported in Ramaswamy Gounder v. Ramaswamy Gounder : (1995)2MLJ413 , that the Proviso does not lay down that in every case it is incumbent upon the court to insist upon furnishing security to the satisfaction of the court or deposit of the amount as stated therein, nor does it make it as a condition precedent for filing an application for setting aside the sale. The provision had been introduced as a salutary Rule in Order to avoid any frivolous application. The court has been given the discretion to call for the applicant to furnish security or deposit the amount in a given case and that too, after giving the applicant an opportunity to submit his explanation as to why he should not be directed to furnish security.

28. Hence the Proviso contemplates two things, one is, it is not an absolute Rule that in all cases the applicant has to furnish security or to deposit the amount, the other is the court has been given a discretionary power to call upon the applicant to furnish security or to deposit the amount if the court is not satisfied with the explanation given by the applicant as to why he should not be directed to furnish security.

29. Order 21, Rule 90, C.P.C. empowers the applicant to file an application for setting aside the sale and that right is not taken away by the Proviso introduced by the High Court. Similarly the Central Act do not prohibit the court from imposing any condition for entertaining the application. When there is no specific prohibition in the Central Act, the State Act or provision can be interpreted to uphold the validity of the same, especially when the law is in the Concurrent List of Schedule VII of the Constitution of India.

30. Yet another contention was raised by the counsel for the petitioner that the Proviso cannot be interpreted to set at naught the Rule and the object of the main enactment and the main function of the Proviso is to carve exception to the main enactment. In this case, by virtue of the Proviso the applicants are totally prevented from filing the application under Order 21, Rule 90, C.P.C., since the provision says that the court may call for the applicant to furnish security before admitting the application for setting aside the sale.

31. We are not able to agree with the contention of the learned Counsel for the petitioners. The Proviso specifically mentions that the court can call for the applicant to furnish security or deposit the amount only after giving him a notice. So the applicants are entitled for an opportunity of hearing before any condition is imposed. If the court is satisfied with the explanation of the applicant, then there is no need for the court to impost any condition. If only the court finds the explanation of the applicant is unacceptable, then the court may impose condition. The word 'may' gives a discretion to impose the condition in a given case and this cannot be interpreted as if it is a mandatory rule and that whenever an application is filed under Order 21, Rule 90, Civil Procedure Code, it is incumbent on the part of applicant to furnish security or deposit the amount. Hence, under any circumstances, it cannot be construed that the Proviso introduced by the High Court to Order 21, Rule 90, C.P.C. can be said to be inconsistent with the main provision. We entirely agree with the view expressed by the learned Judges of the Division Bench in the judgment in Ramaswamy Gounder v. Ramasway Gounder : (1995)2MLJ413 , which requires no reconsideration.

32.Accordingly we hold that the Proviso introduced by way of amendment by the Madras High Court to Order 21, Rule 90, Civil Procedure Code is not inconsistent with the main Rule and as such the same cannot be deemed to have been repealed view of Section 97(1) of the Amending Act 104 of 1976. The imposing of condition is the discretion of the court and as such we answer the question referred to the effect that the application filed under Order 21, Rule 90, Civil Procedure Code to set aside the sale can be entertained without furnishing security as contemplated under Proviso to Order 21, Rule 90, Civil Procedure Code irrespective of Section 97(1) of Act 104 of 1976 in a given case depending upon the facts and circumstances of that particular case.

33. In this case, the lower court has taken into consideration of the petitioners for imposing condition and as such we are of the opinion that the order of the lower court has to be confirmed. There is no need to send back the matter to the single Judge to decide the case on merit. Accordingly the civil revision petition is dismissed. After the pronouncement of the order, learned Counsel for the petitioners Mr. V. Shanmugham represents that there are two other grounds to be urged in the civil revision petition and hence, the matter may be posted before the learned single Judge for further arguments. We accordingly direct the matter to be posted before the learned single Judge. In the last paragraph of the order, we have said that the lower court has taken into consideration the conduct of the petitioners for imposing condition. However, we leave that question to the learned single Judge to be decided in accordance with law.

Subject	Civil
Court	Chennai High Court
Decided On	Mar-09-1999
Reported in	(1999)2MLJ343
Appellant	S.K.S. Rajamani Nadar and anr.
Respondent	TuticorIn Small Scale Salt Manufacturers Association, Through Its Secretary, M.S. Arunachalam and an
Cases Referred	Ramaswamy Gounder v. Ramasway Gounder

S.K.S. Rajamani Nadar and anr. Vs. TuticorIn Small Scale Salt Manufacturers Association, Through Its Secretary, M.S. Arunachalam and anr. - Court Judgment