IMPORTANT POINT
Order 34 CPC is a special procedure prescribed relating to mortgages and procedure prescribed under Order 21, Rule 92 has no application as regards passing of final decree under Order 34, Rule 5 CPC.

ORDER

This appeal by special leave arises from the judgment of the learned single Judge of the Madras High Court, made on September 23, 1975 in CRP No. 4307/84. The facts are little complicated, but to clear the clogs, they are as under :

2. The Catholic Syrian Bank Ltd. was the mortgagee and Manickam Mudaliar was the mortgagor in respect of the plaint schedule property. To foreclose the mortgage O.S. No. 340/1951 was filed by the Bank. Preliminary decree was passed on December 20, 1951 and final decree came to be passed on August 28, 1952. When objections were raised against the passing of final decree pending those proceedings and later execution thereof, one Palaniammal, a simple money creditor filed OS No. 321/1958 against Manickam Mudaliar and obtained a money decree. In execution of the decree, the self-same property was brought to sale in which one Kandaswamy had purchased the property in court auction on September 4, 1963. Admittedly, the same came to be confirmed and possession was taken under the said decree. Kandaswamy transferred the property in favour of B.V. Muniraj and B.V. Rangaraj, respondent Nos. 1 and 2. Subsequently, the proceedings went on between the parties with which we are not concerned. Respondent Nos. 1 and 2 filed the application under Order XXXIV, Rule 5 CPC for passing a final decree in terms of sub-rule (1) of Rule 4 of Order XXXIV. That order came to be passed. Orders passed on objections and the orders passed by the executing court under Order XXXIV, Rule 5 were the subject matter of the revision and were dealt with together. The learned single Judge has upheld the action of the Court below in passing the final decree in favour of the subsequent Court purchasers B.V. Muniraj and B.V. Rangaraj. Pending revision, they, in turn, sold the property to one S. Palaniswamy, who is the fifth respondent herein. Thus, the question arises whether the appellant-purchaser of the property in the mortgage decree has a precedence over the purchaser in money decree in getting the final decree passed in the mortgage suit.

3. Order XXXIV, Rule 5, CPC provides as under :

"5. Final decree in suit for sale.-(1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of Rule 4, the Court shall, on application made by the defendant in his behalf, pass a final decree or, if such decree has been passed, an order-

(a) a ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary,-

(b) ordering him to transfer the mortgaged property as directed in the said decree,

and also, if necessary,-

(c) ordering him to put the defendant in possession of the property.

(2) where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase-money paid into Court by the purchaser.

Where, such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4."

Later two clauses are not relevant for the purpose of this case.

4. A reading of the above would clearly indicate that where,