TMI Blog1969 (12) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... udge, Varanasi. Therein certain properties belonging to the judgment-debtor were sold. The appellant moved the executing court under Order 21, Rule 90, CPC to set aside the sale. His application was dismissed on the ground that he was not an interested party. Aggrieved by that order he went up in appeal to the High Court of Allahabad. The High Court reversed the finding of the lower court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the requirements of this clause: Provided further 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. 3. Clause (b) of the proviso was added on June 1, 1957. The application with which we are concerned in this case was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and not to the stage when the court takes up, the application for consideration. This; contention was rejected by the High Court relying on the decision of that court in Kundan Lal v. Jagan Nath Sharma AIR 1982 All 547. The same view had been taken by the said High Court in Dhoom Chand Jain v. Chaman-lal Gupta AIR 1902 All 543 and Haji Rahim Bux and Sons v. Firm Samiullah and Sons and again in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication on merits. It proceeded on the basis that the compliance of the proviso is mandatory and as such the court is incompetent to permit the applicant to comply with the same, once the application has been disposed of on merits. In our judgment this view of the High Court is erroneous. Clause (b) of the proviso confers on court considerable discretion. It is left to the court to decide the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n did not apply to the present proceedings. Under the circumstances, we are of the opinion, that in the interest of justice the High Court should have remanded the case to the executing court leaving it to that court to exercise its discretion under Clause (b). 6. For the reasons mentioned above we allow this appeal and set aside the order of the High Court and. remit the case to the executing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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