TMI Blog1999 (10) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... cord as closed. The appellant, thereafter, filed E.P.No.106/81 for sale of the mortgaged properties but when this application too failed to fetch bidders for the properties which were put up for sale on 25.1.1982 and 25.3.1982, the appellant himself, through another application, namely E.A.No. 88/82, sought permission of the court to bid at the auction sale and to set off the decretal amount against the sale price. This application was allowed on 28.4.1982. The respondent, in the meantime, filed E.As.No. 115 and 116 of 1982 claiming relief under the Debt Relief Act but the Applications were rejected by the Court. In the auction which was held on 29th April, 1982, the appellant offered his bid in the sum of ₹ 75,005/-. The case was directed to come up on 1st July, 1982 for confirmation of sale. In the meantime on 21st of June, 1982, respondent filed E.A.No. 151/82 under Order 21 Rule 90 read with Section 47 CPC for setting aside the sale held on 29.4.1982. This Application was contested by the appellant who indicated in his counter affidavit that there was no irregularity or fraud committed in conducting the sale. On 18th of September, 1982, E.P. No.151/82 was dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent without prejudice to the contentions of the parties. On 16th September, 1983, when the matter was taken up by the trial court, respondent's Application (E.A. No.226 of 1983) was allowed and the balance amount of ₹ 62,563/-, which was directed to be deposited, was accepted and it was recorded that the mortgage was discharged. After remand by the High Court, E.A. No. 293 of 1982 and E.A. No. 294 of 1982 were both dismissed by the trial court on 12th December, 1983 with the finding that the respondent had committed forgery by filing and relying upon false documents for which he was liable to be prosecuted. Against this judgment, the respondent filed C.M.A. 19 of 1984 and C.M.A. 74 of 1984. While these two appeals were pending in the High Court, the respondent filed I.A. 337 of 1984 before the trial court for return of documents under Order 34 Rule 5A CPC, but the application was rejected by the trial court on 6th September, 1985, against which the respondent filed C.R.P. No.4402 of 1985 in the High Court. C.M.A. No.19 of 1984 and C.M.A. No.74 of 1984, as also C.R.P. No.4402 of 1985 were taken up together by the High Court and by the common judgment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the application for setting aside the order by which E.A. No. 151 of 1982 was dismissed for default was rejected, an appeal was filed in the High Court and it was during the pendency of that appeal that an application under Order 34 Rule 5 C.P.C. was filed by the respondent for depositing the balance of the mortgage money. This application was ultimately allowed and the balance of the amount of ₹ 62,563/- was deposited by the respondent and consequently the mortgage was discharged. The application under Order 34 Rule 5 C.P.C. was clearly maintainable even at that stage. It is contended that C.M.A. No. 267 and A.A.O. No. 462 of 1983 were allowed by the High Court and the case was remanded to the Executing Court for deciding the application of the respondent for setting aside the sale afresh. That being the stage of the proceedings, the application under Order 34 Rule 5 C.P.C. cannot be said to be not maintainable. In fact, the application, it is contended, was clearly maintainable and the Execution Court by its order dated 16.9.1983 had rightly discharged the mortgage. This order, it is contended, had not been challenged by the appellant at any stage and has become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4. The provisions extracted above clearly indicate that an application under Order 34 Rule 5 C.P.C. can be filed or moved by the mortgagor for the deposit of mortgage money at any time before the confirmation of sale. Originally, there was no provision under Order 34 Rule 5 C.P.C. enabling the defendant to deposit the mortgage money into Court at any time before confirmation of sale so as to save his property from being sold. This provision was introduced by the Transfer of Property (Amendment) Act (21 of 1929) and it was provided that if, at any time, before the confirmation of sale made in pursuance of a final decree, the defendant makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 4 of Order 34, the Court shall, on an application made by the defendant, pass a final decree and if such a decree has already been passed, it would be open to the Court to pass an order:- (a) directing the plaintiff-mortgagee to deliver up the documents referred to in the preliminary decree to the mortgagor; and, if necessary (b) directing him to transfer the mortgaged property, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date on which the sale became absolute. Once these steps have been taken and a certificate has been issued to the purchaser, the latter, namely, the purchaser can obtain delivery of possession of the property sold through the court process by making an application under Order 21 Rule 95 C.P.C. or if the property is in possession of the tenant, symbolic possession would be delivered to him. Article 180 of the Limitation Act, 1908 which has since been replaced by the Limitation Act, 1963, provided for a limitation of three years for making an application for delivery of possession under Order 21 Rule 95 C.P.C. In a case which was ultimately decided by the Privy Council, the question arose as to when the sale shall be deemed to have become absolute; either on and from the date on which it was confirmed or on and from the date on which the appeal, filed against an order rejecting application for setting aside the sale, was disposed of. The Privy Council in Chandra Mani Saha and others vs. Anarjan Bibi and others, AIR 1934 Privy Council 134, held as under:- ....in construing the meaning of the words when the sale becomes absolute in Art. 180, Limitation Act, regard must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was that once the sale has become absolute and has been confirmed, an application to scale down the decree-debt would not lie. This was rejected by the High Court which held that in view of the pendency of the appeal, the validity of the sale was still in question and until that question was finally decided by the High Court, the sale could not be treated to have become absolute particularly as the appeal had to be regarded as a continuation of the proceedings initiated in the lower court for setting aside the sale. In another Madras decision in S.V. Ramalingam and others vs. K.E. Rajagopalan and another, 1975 (2) Madras Law Journal 494, rendered by S.Natarajan, J. (as His Lordship then was), this principle was reiterated and it was held that: 16. The confirmation of a sale subsequent to the dismissal of a petition under Order 21, rule 90 cannot, in reality, after the situation when the mortgagor-judgment-debtor has preferred within time an appeal against the dismissal of his petition under Order 21, rule 90. Though the confirmation of the sale does take the auction-purchaser a step further than before the confirmation of the sale, the confirmation, by itself, is in one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale does not become absolute or irrevocable merely on passing an order confirming the sale under Order 21 Rule 92 but it would attain finality on the disposal of the appeal, if any, filed against an order refusing to set aside the sale. Mr. A.T.M. Sampath, learned counsel appearing on behalf of the appellant has vehemently contended that the principles set out above would not be applicable to the present case inasmuch as the appeal was not filed by the respondents against the order refusing to set aside the sale but it was filed against an order by which their application for restoration of another application, namely, the application for setting aside the sale under Order 21 Rule 90, which was dismissed in default, was rejected. He has invited our attention to the decision of this Court in Hukamchand vs. Bansilal Ors., 1967 (3) SCR 695, in which it was held that:- Though O. XXXIV r. 5(1) recognises the right of the judgment-debtor to pay the decretal amount in an execution relating to a mortgage decree for sale at any time before the confirmation of sale, the rule does not give any power to the court to grant time to deposit the money after the final decree has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould automatically operate to vacate, or, render ineffective, the earlier order confirming the sale under Order 21 Rule 92. The High Court was of the opinion that pendency of an application under Order 21 Rule 90 C.P.C. would operate as a bar to an order of confirmation of sale being made under Order 21 Rule 92. It was further of the view that restoration of an application under Order 21 Rule 90 C.P.C., which was earlier dismissed for default, would relegate the parties to the earlier position and the application for setting aside the sale would be treated as pending and not disposed of despite the confirmation of sale in the interregnum. In Ramathal vs. Nagarathinammal, (1967) 1 M.L.J. 260, the above view was reiterated and it was held that the restoration of an application under Order 21 Rule 90, which was earlier dismissed in default, would render ineffective the order by which the sale was confirmed. The Andhra Pradesh High Court in Satyanarayana vs. Ramamurthi, (1960) 2 An.W.R. 430, held that it is only where no application under Order 21 Rule 90 is made within the statutory period or where such an application is made but is rejected that the Court can exercise its power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was dismissed in default on 18.9.1982. Thereafter, the sale was confirmed. This compelled the respondent to make an application for setting aside the confirmation of sale. They also made an application for restoration of their earlier application under Order 21 Rule 90 C.P.C. Both the applications were made on 12.10.1982 but they were rejected on 2.4.1983 against which, as pointed out earlier, C.M.A.No. 267/83 and C.M.A.No. 462/83 were filed. In these appeals, the respondent also moved an application (C.M.P.No. 7710/83) for stay and the High Court passed conditional order of stay by directing the respondent to deposit a sum of ₹ 25,000/- in the Executing Court on or before 30.6.1983. The respondent deposited the amount on 26.6.1983. While these appeals were pending in the High Court, the respondent made an application (E.A.No. 226/83) in the original suit for deposit of money under Order 34 Rule 5. C.M.A.No. 267/83 was allowed by the High Court on 21.7.1983 by the follwing order:- Appellant came forward with a claim that on 12.9.1982 he was afflicted with chicken pox and this was preceded by fever for two days. Court below held that when no prescription issued by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, provided as under:- It is stated that in respect of orders passed in E.A.No.293 of 1982 which was filed to set aside the orders passed in E.A.No.151 of 1982 and which in turn was filed to set aside the sale, C.M.A.No.262 of 1983 is filed to this Court. In the light of the orders already passed in C.M.A.No.267 of 1983 and the entire matter having been reopened, both the appeal and the revision petition are allowed with costs with a direction to the court below to dispose of the connected E.As. along with E.A.No.294 of 1982, which is being presently enquired into. It is stated that the court below did not issue chalan for remittance of ₹ 62,563/-Now that the matter has been reopened, the court below is directed to issue necessary chalan for the amount to be deposited but without prejudice to the contentions of parties. If by the date of deposit, it is open to the Judgment debtor to deposit the high amount. On production of the Steno copy of this order, the court below shall proceed further in the matter. Sd/- 7.9.1983. A perusal of the portion of the order extracted above would show that the whole matter was reopened with the result that the confirmation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court endorsed the view of the trial court that on the deposit of the balance amount of the mortgage money, the mortgage stood discharged. The Trial Court having also allowed the application of the respondent for return of documents under Order 34 Rule 5A C.P.C., there was no occasion for the High Court to have dismissed C.M.A.Nos. 19 and 74/84. Mr. A.T.M. Sampath has contended that having dismissed C.M.A.Nos.19 and 74/84, the High Court should not have allowed C.R.P.No.4402/85 nor should have it allowed the respondent's application under Order 34 Rule 5A for return of documents. He is, to that extent, right. But once the balance of the mortgage money was allowed to be deposited under Order 34 Rule 5 and the documents were also ordered to be returned under Rule 5A, with the consequence that the mortgage was treated as discharged, the obvious conflict can be removed by allowing both the appeals, namely, C.M.A. Nos. 19 and 74 of 1984, which are hereby allowed, so as to bring in harmony the earlier part of the judgment with the latter part. The objection that the respondent had not filed any appeal in this Court against that part of the judgment of the High Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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