Law: Civil Procedure Code (V of 1908)

Section: 90

(a) Civil Procedure Code (V of 1908)--- ----O.XXI, R. 90, Second Proviso---Second proviso to O.XXI R.90, C.P.C.---Interpretation and scope---Sale of mortgaged property---Judgment debtor objecting to sale---Question as to whether a 20% deposit of the auction price was obligatory for an objector without an order by the Banking Court requiring the same to be deposited in terms of second proviso to R. 90 of O.XXI, C.P.C.---Held, that the second proviso to O.XXI, R. 90, C.P.C. (the second proviso) contemplated a prior direction of the court to deposit the sum or furnish the security for entailing penal consequences of dismissing the objection petition due to non-deposit of the amount or non-furnishing of the security, which was required to be deposited or furnished under the second proviso for entertaining the objection petition---Punitive action could be taken only when the applicant failed to comply with the direction of the court, and in absence of such direction the objection petition could not be dismissed for non-deposit of the 20% of the sum realised at sale---Expression as the Court may direct used in the second proviso left little room to speculate whether the applicant/objector was to deposit the 20% of the sale amount at the time of filing the objection petition or at a subsequent stage under direction of the court---Furthermore the expression such amount not exceeding twenty percent further strengthened the position that the amount required to be deposited by the applicant/objector was to be determined by the court which must not exceed twenty percent of the sale amount but could be less than that---Applicant could not anticipate what the direction of the court would be in such regard and, therefore, he cannot deposit the requisite amount at the time of filing the objection petition---Mandatory requirement of the second proviso appeared to become operative only once the court determined the amount not exceeding twenty percent of the sum realised at the sale and directed the applicant/objector to deposit the same---Supreme Court observed that said interpretation of the second proviso was, however, in contrast to the view expressed by a three-member Bench…

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