IMPORTANT POINT
If an appeal is pending against an order refusing to set aside the sale, it would be open to judgment-debtor to invoke provisions of Order 34 Rule 5 CPC and make necessary deposits to save his property.

JUDGMENT

S. Saghir Ahmad, J.- Leave granted.

The appellant, who was the owner of a plot of land measuring one and a half kanal, situated in Industrial Area, Chandigarh, had mortgaged the said land with one Col.. Joginder Singh for a sum of Rs. 20,000/- after raising certain constructions thereon.

2. Col. Joginder Singh subsequently filed a suit for foreclosure in order to recover the mortgage money by sale of Industrial Plot No. 255-P and the building constructed thereon. A preliminary decree was passed in that suit on January 23, 1976, directing the appellant to deposit a sum of Rs. 28,187.50 along with future interest at the rate of 9 per cent per annum on or before March 23, 1976. The amount was not deposited and, therefore, Col. Joginder Singh filed an application for final decree which was passed by the Sub-ordinate Court, Chandigarh, on April 8, 1976. The decree was put to execution and in execution proceedings, the property was auctioned on August 25, 1976. Nazar Singh, who is now represented by the present respondents, purchased the property at the auction for a sum of Rs. 45,000/-. The auction-sale was challenged by the appellant by filing an application under Order 21 Rule 90 C.P.C. on August 28, 1976. The objections were rejected on November 28, 1977 and on the next day, namely, on November 29, 1977, the Court confirmed the auction-sale.

3. The appellant, thereafter, filed two appeals (Appeal Nos. 373 and 374 of 1977) in the High Court. During the pendency of those appeals, he also deposited a sum of Rs. 47,250/- on May 3, 1985 and another amount of Rs. 525/- was deposited by him on August 19, 1985. When the appeals came up for hearing before the Single Judge, it was noticed that the appellant had already deposited the requisite amount under Order 34 Rule 5 of the Code of Civil Procedure and, therefore, the appeals were allowed on August, 30, 1985 and the auction-sale as also its confirmation were set aside with the direction that the amount, deposited by the appellant, would be paid to the heirs of Nazar Singh who had, in the meantime, died and was substituted in the appeals by the present respondents. The judgment passed by the Single Judge was challenged by the respondents in the Letters Patent Appeals filed before the Division Bench, which allowed both the appeals by the impugned judgment dated July, 2, 1998 and set aside the judgment passed by the Single Judge. It is in these circumstances that the present appeals have come up before us.

4. Learned counsel for the appellant has contended that the Division Bench of the High Court was in error in interfering with the judgment passed by the Learned Single Judge on the ground that the deposits, made by the appellant during the pendency of the appeals in the High Court, would not ensure to his benefits and could not be treated to have been made under Order 34 Rule 5 C.P.C. as the auction-sale had already been confirmed. It is further contended that Order 34 Rule 5 C.P.C. contemplates deposit before "confirmation of sale" and if the order by which the sale was confirmed had been challenged in appeal, the sale would not be treated as confirmed unless the appeal was disposed of. It is further contended that since the appellant, in the instant case, had made the deposits during the pendency of the appeals in the High Court, which were directed against the auction-sale as also its confirmation, the deposits so made were valid and could not have been treated to have been made "after confirmation".

5. Learned counsel for the respondents, on the contrary, contended that when a preliminary decree was passed by the trial Court, the appellant was allowed time to deposit the whole of the decretal amount by a specific date, namely by March 23, 1976 but the appellant did not do so and, consequently, the property was auction-sold. The sale was challenged by the appellant through objections unde Order 21 Rule 90 C.P.C., which were rejected and the sale was thereafter confirmed. It is