(1.) ORDER :- This is a judgment-debtors' revision under S.115 of the Code of Civil Procedure against the judgment and order of the Court below dismissing the objection filed under O.XXI, R.90 of the Code of Civil Procedure (for short 'the Code') on the ground of non-compliance of Cl.(b) to proviso added by the Allahabad High Court to O.XXI, R.90 of the Code. The relevant proviso reads :

"That no application to set aside a sale shall be entertained - (a) ........................... (b) unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the Court may in its discretion fix except when the Court for reasons to be recorded dispenses with the requirements of this clause........"

(2.) What happened in this ease was that in execution of the money decree obtained by the opposite party M/s. G.K. Brothers, Birtana Road, Kanpur, the house of the applicants was attached and sold. The applicants filed application under O.XXI, R.90 of the Code for setting aside the sale in 1981 and the same was registered as Miscellaneous Execution Case No. 2 of 1981. But they did not deposit 121/2% (twelve and half per centum) of the sale consideration, Which was required under the High Court amendment. On April 17, 1982, the Civil Judge rejected the application on the ground that the security money was not deposited by the judgment-debtor. He ordered, "Case called out. Applicant is absent. D.H. is present. Auction-purchaser is present. Security also not deposited. Application under O.XXI; R.90 is not maintainable, hence rejected." The applicants filed a restoration application, Which was registered as Miscellaneous Case No. 93 of 1983. The same was allowed on December 15, 1986. December 5, 1987, was fixed for disposal of the application of the applicants under O.XXI, R.90 of the Code. On that date the Court rejected the application for adjournment moved by the judgment-debtors. The Court held that the applicants since has not complied with the condition precedent of depositing twelve and a half per centum of the sale consideration in cash or furnished security, the objection was not maintainable. The Court below noted that although the application under O.XXI, R.90 of the Code was filed by the judgment-debtors in 1981, but the requirement of the Proviso (b) to O.XXI, R.90 had not been complied with. Against this order, the present revision has been filed.

(3.) The main argument of the learned counsel for the applicants was that since the Proviso (b) to O.XII, R.90 of the Code added by the High Court is inconsistent with S.96 of the Code (Amendment Act, 1976) (Act No.104 of 1976) the application of the applicants filed under O.XXI, R.90 of the Code could not be rejected on the ground of non-compliance of the conditions mentioned therein, Under O.XXI, R.90 a sale of immovable property in execution of a decree can be set aside on the ground of material irregularity or fraud in publishing or conducting the sale provided he proves that he has sustained substantial injury by reason of such irregularity or fraud. The old R.90 has been substituted by the present new one of the Code (Amendment Act, 1976). Sub-rule (1) of the present rule is exactly similar as the old sub rule one. Except that the words 'of the purchaser' after the words 'the decree-holder in the present sub-rule are new. Under the old rule there was a conflict of decisions as to whether an auction-purchaser can apply to set aside a sale under the rule. On the recommendations of the Law Commission made in 27th report the words' 'or purchaser' have been added to make it clear that auction purchaser could also apply. In sub-rule (2) words' 'in publishing or conducting it' have been added. Sub-rule (3) is new. It provides that no application to set aside a sale shall be entertained on any ground which the applicant could have taken on or before the date of the proclamation of sale.

(4.) So far as the Proviso (b) to O.XXI, R.90 is concerned it has been noted that it was another useful amendment by the Allahabad High Court in sub-rule (1) that the application to set aside a sale shall not be entertained unless the applicant deposits twelve and half per cent of the sum realised at the Sale or furnishes such security as may be fixed by the Court.

(5.) On the basis of S.97 of the Code (Amendment Act) counsel urged that as the Proviso (b) added by the Allahabad High Court in sub- rule (1) is consistent, therefore, the same stands repealed. Section 97(1) of the Code reads thus : "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.

(6.) The effect of S.97(1) is, in the words of Supreme Court itself as observed in Ganpat Giri v. Second Addl. Dist. Judge, Ballia, AIR 1986 SC 589 : (1986 All LJ 271) :-

"The effect of S.97(1) is that local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent 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........"

(7.) Learned counsel for the applicants submitted that even though the provisions of O.XXI, R.90 have not been amended by the Amending Act 104 of 1976, the Allahahad provision is inconsistent with the same and is not valid.

(8.) The rule as it was in force in the State of U.P. prior to the commencement of amending Act 104 of 1976 that in the State of U.P., sub-rules (1) and (3) of R.72 of O.XXI had been completely deleted and sub-rule (2) had been renumbered as R.72 with the modification that for the words'with such permission' the words'the property sold' had been substituted. The result was that in the case of decree-holder there was no need for obtaining the express permission of the executing Court before offering the bid for purchasing the property put up for sale under sub-rule (1) nor was there the power of the Court to set aside the sale under sub-rule (3) of R.72 in the absence of such permission. By the amending Act the Parliament added sub-rules (1), (2), (3) in R.72 of O.XXI. On account of the addition it was incumbent for a decree-holder to obtain prior permission of a Court before bidding or purchasing the property brought to sell in execution of his decree and empowered the executing Court to set aside the sale it he purchases the property without such permission.

(9.) As a result of the amendment made by Act 104 of 1976 there was a clear inconsistency between R.72 as it stood after the Allahabad amendment and as it stood after Act 104 of 1976. (10.) Order XXI, Rule 90 of the Code is totally silent about the requirement of depositing twelve and half percent of sale consideration or furnishing of security for entertaining an application under O.XXI, R.90. The field with regard to the Same was unoccupied, uncovered and untouched. Consequently, there was nothing inconsistent with the proviso amended by the U.P. Legislature that could come within the mischief of S.97(1) of Act 104 of 1976.

(11.) A Full Bench of our Court was called upon to consider Smt. Chandra Rani v. Vikram Singh, (1979) 5 All LR 56 : (1979 All LJ 401) (FB). The Court took the view that O.XV, R.5, as added by the U.P. Act, was valid and did not stand repealed by virtue of Act 104 of 1976. In Premier Motors (P.) Ltd. v. Jaswant Prasad, (1988) 14 All LR 665 ; (AIR 1989 All 1), a Full Bench of this Court considered the effect on the local amendment made by the Legislature. The Full Bench held : "In our opinion when the judgment is read as a whole the contention raised that all amendments made by the High Court and by the State Legislature prior to February 1, 1977, stood repealed whether consistent or inconsistent with the Central Act, does not appear to be correct............." It has been further stated :

"In the circumstances, we do not think that Hon'ble Supreme Court intended to hold that all local amendments made by the State Legislature or by the

High Court whether they were inconsistent or not would stand repealed by the Code as amended by the Central Act. The intention clearly was that the provisions of S.97, sub-clause (1) of the Central Act be given full effect and any prior amendment made by the High Court or by the State Legislature before February, 1,1977 would stand repealed only if it was not consistent with the provision of the Central Act." (12.) The field covered by the Allahabad proviso was unoccupied and hence it was not inconsistent with anything in the amended Code of Civil Procedure and as such there was no inconsistency. Consequently, sub-sec.(1) of S.97 of the Code did not apply, As already stated Ganpati Giri v. Second Add. Dist. Judge, Ballia, (1986 All LJ 271) (SC) (supra) had a different controversy before it. (13.) No other point was urged. (14.) The revision fails and is dismissed with costs. Revision dismissed.