' The facts giving rise to this civil revision are that in execution of a decree passed in favour of respondent No. 1, Mst. Arshad Begum and against the petitioners, M. Shafique Shah and another, and respondents Nos. 2 to 8, Abdul Latif Shah and six others, a house was put to auction and it was purchased by respondent No, 9, Mahboob Ali Khan, for Rs, 1,25,000, petitioners objected to the sale by means of a petition. Their objection petition was, however, rejected by the learned executing Court on the ground that they had not deposited twenty percent of the sale price before filing their objections. Feeling aggrieved by the order of the learned executing Court the petitioners went in appeal before an Additional District Judge but without success. They have, therefore, come up in revision to this Court.
2. Learned counsel for the petitioners contended that the learned executing Court had not correctly interpreted the second proviso to rule 90 of Order XXI of the Code of Civil Procedure while rejecting the objection petition. The argument proceeds that before the petitioners could be punished for not making the deposit in pursuance of the said proviso, it was incumbent upon the learned executing Court to fix the amount of deposit and then direct them to deposit the same but as the Court had not made any order in this behalf, the objection petition could not be dismissed due to the failure of the petitioners to make the deposit in question.
3. The arguments advanced by the learned counsel for the petitioners were supported by the learned counsel for the first respondent.
4. On the other hand, it was urged by the learned counsel for respondent No, 2 and the learned counsel for respondents Nos. 3 to 9 that it was not necessary for the executing Court to specify the amount to be deposited by the petitioners in terms of the second proviso to rule 90. According to them, it was obligatory for the petitioners to deposit twenty per cent of the sale price before filing the objection petition without awaiting the order of the executing Court and since they had not done the needful the said Court was justified in throwing away their petition.
5. Rule 90 reads as follows :- "20. Application to set aside sale on ground of irregularity or fraud.-Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a ratable 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; and ' Provided further that no such application shall be entertained unless the applicant deposits such amount, not exceeding twenty per cent of the sum realised at the sale, or furnishes such security, as the Court may direct."
' According to learned counsel for petitioners and respondent No. 1 the word "as the Court may direct" occurring in the second proviso to rule 90 are to be read not only in regard to the provisions relating to the furnishing of security but also in respect of those dealing with the deposit of twenty per cent. Of the sale price. As against this, the view expressed by the learned counsel for respondents 2 to 9 was that the said words apply to the provisions relating to the furnishing of security only and have nothing to do with those dealing with the deposit of twenty per cent. Of the sale price.
6. I am unable to agree with the learned counsel for respondents Nos. 2 to 9. The proviso under examination was enacted with a view to discouraging frivolous objections. If the interpretation placed by the learned counsel for the respondents 2 to 9 on the proviso is accepted, it would enable an objector to deposit any amount not exceeding twenty per cent of the sale price. This could be a one Rupee or even less than that. Obviously, such a ridiculous deposit would not serve the purpose for which the aforesaid provisions were incorporated in rule 90 by means of a subsequent amendment. Further, if the intention of the Legislature had been to require an objector to deposit twenty per cent of the sale price in any case, there was no need to employ the word "not exceeding" while enacting the above A proviso. By making use of these words, discretion was given to the executing Court to require the objector to deposit any amount not exceeding twenty per cent of the sale price. I am, therefore, in agreement with the learned counsel for the petitioners and the first respondent that it was obligatory for the learned executing Court to specify the amount of deposit required to be made by the petitioners in terms of the second proviso to rule 90 and since no direction in this behalf was given by the said Court, it was not justified in rejecting the objection petition for non-deposit of the amount in question.
7. Another plea raised by the learned counsel for respondents Nos. 2 t. 9 to support the order of the learned executing Court was that the objection petition rejected by the said Court was time barred.
It was pointed out by them that the sale of the disputed property had taken place on 25February, 1978 but the objection petition was made on 25th July, 1978, that is, after five months although, according to the provisions of Article 166 of Schedule I of the Limitation Act, 1908, it ought to have been made within 30 days of the sale. It was also maintained by them that no application was made by the petitioners for condonation of delay in the Min of the objection petition. Realising that the impugned order passed by the learned executing Court did not take notice of the petition being time barred, learned counsel for respondents 2 to 9 contended that the plea of limitation raised by them involved a pure question of law and, therefore, it could be advanced at any stage of the proceedings. Learned counsel for petitioners and the first respondent could not give any convincing reply to the arguments presented by the learned counsel for respondents Nos. 2 to 9. I, therefore, uphold the order of the learned executing Court for the reason that the petition on which the said order was made was barred by time.
7. In result, the revision petition fails and is dismissed with costs.