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1999(8) Supreme 463
Supreme Court of India
(From Madras High Court)
S. Saghir Ahmad & S. Rajendra Babu, JJ.
U. Nilan -Appellant
versus
Kannayyan (Dead) Through LRs. -Respondents
Civil Appeal No. 841 of 1988
Decided on 5-10-1999
Counsel for the Parties :
For the Appellant : V. Balaji, A.T.M. Sampath, Advocates.
For the Respondent : R. Sundaravaradan, Sr. Advocate, M.A. Krishnamoorthy, Advocate.
Held : Order 34, Rule 5 clearly indicate that an application under Order 34 Rule 5 :10444>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. Order 34 Rule 5 provides the last chance to the mortgagor to save his property from being passed on to the auction purchaser and avoid the disturbance of his title ensuring, at the same time, that mortgage money is paid to the person in whose favour the property had been mortgaged by depositing the entire amount in the Court, including the amount, where the property has been sold, contemplated by Sub-rule (2) of this Rule. The whole step has to be taken before the confirmation of sale. (Paras 18 & 20)
What is the meaning of the phrase “before the confirmation of sale” may now be considered in the light of other relevant provisions of the Code of Civil Procedure. The provisions of Order 21 Rule 92(1) indicate that if an application is not made either under Rule 89 or Rule 90 or Rule 91 for setting aside the sale, the Court would confirm the sale. So also, where such application is made and is disallowed, the sale would be confirmed. When the “sale” thus becomes absolute, the Court is required to grant a certificate under Order 21 Rule 94 to the person in whose favour the sale has been confirmed specifying therein the details of the property sold, the name of the purchaser as also the 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. (Paras 21 & 23)
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. (Para 30)
The situation where an appeal is filed directly against the order dismissing an application under Order 21 Rule 90 is not different from the situation where the appeal is filed against the order dismissing that application in default inasmuch as in both the situations, it is the validity of confirmation of sale, which is involved and is under possible jeopardy. (Para 33)
Adversity of a person is not a boon for others. If a person in stringent financial conditions had taken the loan and placed his properties as security therefor, the situation cannot be exploited by the person who had advanced the loan. The Court seeks to protect the person affected by adverse circumstances from being a victim of exploitation. It is this philosophy which is followed by the Court in allowing that person to redeem his properties by making the deposit under Order 34 Rule 5 C.P.C. (Para 39)
Judgment
S. Saghir Ahmad, J.-The facts labyrinthically placed in the jargon of hosts of applications, appeals and revisions, are summed up below.
2. The respondent who is since dead and is now represented by his legal representatives (hereinafter referred to as ‘respondent’), had mortgaged his properties by deposit of title deeds in favour of the appellant in 1976. On January 9, 1978, the appellant filed O.S. No. 21/78 for the recovery of mortgage money in the Court of Sub-Judge, Thanjore. A preliminary decree in the suit was passed on 10th September, 1979 for a sum of Rs. 73,915. This was followed by a final decree passed on 21.3.1980.
3. Since the respondent did not pay the decretal amount to the appellant, the latter, namely, the appellant filed an Execution Application (E.P. No. 164/80) for the sale of the hypothecated property. When the property was put up for sale on 25.6.1981, no person was available to offer his bid and, therefore, E.P. No. 164/80 was consigned to record as closed.
4. 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.
5. In the auction which was held on 29th April, 1982, the appellant offered his bid in the sum of Rs. 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.
6. On 18th of September, 1982, E.P. No. 151/82 was dismissed in default and the sale was confirmed under Order 21 Rule 92 C.P.C. The respondent, thereafter, filed E.A. No. 293/82 for restoration of E.P. No. 151/82 which was dismissed in default. He also filed another application, namely, E.A. No. 294/82 for setting aside the confirmation of sale. Application for setting aside sale was rejected by the Executing Court on 2.4.1983 as not maintainable and on the same day, E.A. No. 294/82 was also dismissed.
7. The respondent then filed C.M.A. No. 267/83 in the High Court against the order by which E.A. No. 294/82 for setting aside the confirmation of sale was rejected. He also filed C.M.A. No. 462 of 1983 in the High Court against the order rejecting the Application (E.A. No. 293 of 1982) for restoration of E.A. No. 151 of 1982. In C.M.A. No. 267 of 1983, respondent moved an application (C.M.P. 7710 of 1983) for an order of interim stay which was granted subject to his depositing Rs. 25,000/- in the court before 30.6.83. This order was complied with and the respondent deposited that amount in the Executing Court on 24.6.83.
8. While C.M.A. No. 267 of 1983 and C.M.A. No. 462 of 1983 were pending in the High Court, the respondent made an Application (E.A. No. 226 of 1983) in the Suit (O.S. No. 21 of 1978) for depositing the balance of the mortgage amount under Order 34 Rule 5 CPC. While this Application was pending, C.M.A. No. 267 of 1983 was allowed by the High Court by its judgment dated 21st July, 1983 and the order passed by the Executing Court in E.A. No. 294 of 1982 was set aside and the case was remanded to the Executing Court to hear and decide the Application (E.A. No. 294 of 1982) afresh after allowing the parties to lead such evidence as they considered necessary. In the meantime, by order dated 27th July, 1983, respondent’s A
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