Bandi Dhanalakshmi and Another vs Chalamala Satyanarayana

B. Prakash Rao, J.—The petitioners, who are judgment- debtors, seek to challenge the orders dated 22-1-1999 in E.A. No. 11 of 1999 in E.A. No. 473 of 1998 in E.P. No. 103 of 1996 on the file of Junior Civil Judge at Gudivada dismissing an application seeking extension of time for a further period of twenty days for enabling them to furnish fresh security bond as ordered earlier.

The petitioners filed the main application i.e., E.A. No. 473 of 1998 for setting aside the sale held in execution on 8-9-1998 in pursuance of the decree obtained by the respondent herein, inter alia, on various grounds as to under-valuation, etc., which are not relevant for the purpose of considering this case at this stage. On filing of the said application, the Court below has directed the petitioners to furnish security bond. Though in compliance of the said initial order the petitioners had furnished the security bond, however, again as per the order dated 31-12-1998 the petitioners were directed to furnish a fresh security bond and the matter was posted to 19-1-1999. On that day, the application in E.A. No. 11 of 1999 was filed supported by an affidavit of the Counsel appearing for them seeking extension of time for a further period of twenty days mainly on the ground that the husband of the first petitioner and the father of the second petitioner died on 13-1-1999 and therefore the parties being in mourning the request was made for such extension of time. However, the Court below on considering the said application, dismissed the same on the ground that the provision, Order XVII Rule 1 of C.P.C., under which the present application is filed has no application; the petitioners have failed to avail the opportunity granted earlier and that as the sale is not confirmed, prejudice will be caused to the decree holder i.e., respondent herein.

On hearing both the Counsel, it is evident that the petitioners were directed to furnish security bond on the application being filed seeking to set aside the sale. However, since earlier security bond was not found to be satisfactory, on 31-12-1998 they were asked to furnish a fresh security bond. It is, at this stage, the husband of petitioner No. 1 and the father of petitioner No. 2 died and accordingly on behalf of the petitioners the present application was filed supported by the affidavit of the Counsel. Prima facie, in view of the ground viz., the casualty in the petitioners'' family and especially when the same is supported by the affidavit of the Counsel, the lower ought not to have rejected the application merely on the ground of non-application of Order XVII Rule 1 of C.P.C., and the petitioners having already availed the earlier opportunity. In a situation of this nature, where the parties have come out with sufficient reason and that too supported by the affidavit of their Counsel, there is no reason to disbelieve the same nor there is any denial as to the factum of death in the petitioners'' family. The applicability {sic. non-applicability) of Order XVII Rule 1 of C.P.C., cannot be a ground to reject the application. In view of the procedure, which is applicable in respect of the applications filed under Order XXI Rule 90 of C.P.C., the Court is vested with ample powers to grant such extensions or any further time for enabling the parties to comply with the conditions on the facts and circumstances of each case. It is only too technical to say that Order XVII Rule 1 of C.P.C., has no application. The powers, as such, to grant any extensions are not only incidental but also procedural, which are meant to meet the ends of justice, rather than stretching with penal consequences.

In support of their contention the petitioners have relied on a decision of this Court in Papayamma v. Margadarsi Chit Funds 1985(2) ALT 28 : 1984 (2) APLJ 280 wherein a Division Bench of this Court has held that the provision as contemplated under the proviso, which was initially added by the Madras High Court and was adopted by this Court, stood repealed by the Amendment Act 104 of 1976 and hence void. In fact, in view of the said decision, insistence of such security may not arise. However, be that as it may, this revision is being filed only against non- extension of time to furnish security bond, it is not necessary to go into the question as to the correctness of the very order calling upon the petitioners to furnish security.

Apart from lacking in reasons or any discussion on the allegations as shown in the affidavit filed in support of the application and also non-consideration of the affidavit filed by the Counsel himself, the order under revision is liable to be set aside. Accordingly, the revision is allowed and the order dated 22-1-1999 in E.A. No. 11 of 1999 is set aside and the petitioners shall have a further period of one month from to day for furnishing security bond in the Court below. No order as to costs.