IMPORTANT POINT
On dismissal of appeal against an order of confirmation of sale the petition under Order 34, Rule 5 CPC filed during pendency of the appeal could not be allowed as it could not be related back to a point of time prior to confirmation of sale; such a situation will fall short of complying with all the conditions as required under Order 34, Rule 5 CPC.

Headnote:Civil Procedure Code, 1908-Order 21 Rules 89, 90, 92-Mortgage decree-Execution-Mortgaged property sold-Sale confirmed-Appeal against filed by Judgment debtor-Pending appeal, application under Order 34 Rule 5 moved for deposit of decretal amount on mortgage decree-Appellate Court dismissed appeal but allowed application-High Court set it aside in Revision-Appeal against to Supreme Court-Whether the two orders of Appellate Court one dismissing the appeal against confirmation of execution sale of mortgage property and the other allowing the application to deposit decretal amount to set aside decree can co-exit? (No)-High Court was right in setting aside the application-Appeal dismissed. (Cross ref. Order 41 Rule 33 of CPC).
       Held : Considering the whole gamut of case law on the point, it has been held that the confirmation of sale would be absolute only after final orders are passed in appeal. The reason being that in case the appeal succeeds, there would be no confirmation of the sale and in such circumstances, an application moved under Order 34 Rule 5 CPC during pendency of the appeal would be deemed to have been moved before confirmation of the sale. Same view has been reiterated in another decision reported in (2000) 3 SCC 664 (Kharaiti Lal v. Raminder Kaur and others). (Para 10)
       It has already been indicated earlier that the judgment-debtor did not challenge the orders of the appellate court by which his appeal No. 78/82 was dismissed. On the other hand, the decree-holder challenged the order of the appellate court allowing the application IA No. 65/88 moved Order 34 Rule 5 CPC. Learned counsel for the appellants submitted that it was not necessary to challenge the orders by which his appeal No. 78/82 was dismissed since the application under Order 34 Rule 5 CPC namely, I.A.No. 65/88 was allowed and the appellants had been granted permission to deposit the amount in the Court. We fail to appreciate the argument. The application under Order 34, Rule 5 CPC moved by the appellant-judgment-debtor was entertained only during the pendency of appeal No. 78/82. Had the said application not been pending, there was no occasion to permit the judgment-debtor to make the deposit of the decretal amount etc. under Order 34 Rule 5 CPC since the sale had been confirmed prior to moving of the application. In such circumstances, the appellants cannot feel totally unconcerned with the final order passed in the main appeal namely C.A. No. 78/82. The dismissal of the appeal would only affirm the confirmation of the sale which was in nebulous state during pendency of the appeal. We are not considering here, at this stage, as to what appropriate order could or should have been passed on deposit of the money during the pendency of the appeal. The fact remains that two orders one dismissing the appeal and the other allowing the application would not co-exist rather they would be self-contradictory in nature. Somewhat similar facts and situation came to be considered by this Court in the case of U. Nilan 1999(8) SCC 511. There also it appears a number of applications had been moved ultimately resulting in two contradictory orders. The argument which was raised on behalf of the decree-holder about existence of contradictory orders and the judgment-debtor having not moved this Court against dismissal of his appeal, was found to be valid but it was observed that after permitting deposit of the amount and passing an order for return of the documents under Order 34 Rule 5(a) CPC the appeals should not have been dismissed. Ultimately, considering the facts and circumstances of the case and number of applications moved, it was observed, invoking the principles contained under Order 41, Rule 33 CPC that the orders passed in two appeals against the judgment-debtor by the High Court, though not challenged, should be set aside to do complete justice between the parties and to bring the two contradictory orders in conformity. So the appellate orders had been set aside suo motu. In this case learned counsel for the appellants has not advanced any submissions about applicability or for application of principles as contained under Order 41, Rule 33 CPC. On the other hand, he submitted that he was not raising any question of equity etc. but based the case of the appellants only on the legal position which according to us is clear that on dismissal of appeal against an order of confirmation of sale the petition under Order 34, Rule 5 CPC filed during pendency of the appeal could not be related back to a point of time prior to confirmation of sale. Such a situation will fall short of complying with all the conditions as required under Order 34 Rule 5 CPC. As a result of the discussion held above, we find no merit in the appeal and it is accordingly dismissed. Costs easy. (Paras 14, 15, 16 & 17)

JUDGMENT

Brijesh Kumar, J.-This appeal has been preferred by the judgment-debtor, against the judgment and order dated 16.10.1992 passed by the Madras High Court in Civil Revision Petition No. 513 of 1990 stemming out of execution proceedings, setting aside the order by which the application moved by the judgment-debtor under Order 34 Rule 5 CPC was allowed in appeal by the Addl. District Judge, Salem.

2. The brief facts are that two mortgages were created by V.K. Palaniappa Chettiar (died and whose LRs are on record as petitioners) in favour of respondent No. 2 M. Karuppuswamy. The mortgagee filed O.S. No. 863 of 1973 for recovery of mortgage money. The suit was decreed and a preliminary decree was passed by the 1st Addl. Sub-Judge, Salem and the final decree was also passed on 3.7.1974. The decree-holder moved application for execution of the decree in R.E.P.No. 45 of 1980 in pursuance whereof, the property of the judgment-debtor was auctioned on 9.10.1980. The respondent No. 1 Ramaswamy Gounder is the auction purchaser of the property. The auction sale was confirmed on 3.11.1981 under Order 21 Rule 92 CPC and the application preferred by the judgement-debtor under Order 21 Rule 90 was dismissed.

3. Aggrieved by the order dismissing the application, moved by the judgment-debtor under Order 21 Rule 90 CPC, he preferred an appeal some time in August, 1982 viz. C.M.A.No. 78 of 1982 in the Court of the District Judge, Salem. Later, it appears that the judgment-debtor also moved an application I.A. No. 65 of 1988 (I.A. No. 594/83 1st ADJ) under Order 34 Rule 5 CPC. It also transpires that the judgment-debtor was permitted by the Appellate Court to deposit the amount which he did on 6.4.1985. However, the C.M.A. No. 78 of 1982 as well as I.A. No. 65 of 1988 ultimately came to be finally disposed of by the IInd Addl. District Judge, Salem who by order dated 23.8.1988 dismissed C.M.A. No. 78 of 1982 but allowed I.A. No. 65 of 1988. The learned Appellate Court placed reliance upon two decisions reported in S.V. Ramalingam and another v. K. Rajagopal and another1 and Velliammal v. Subramania Iyer2 for the proposition that a petition under Order 34 Rule 5 CPC can be entertained during the pendency of an appeal against the order rejecting the application under Order 21 Rule 89 and 90 CPC for setting aside the sale. The proposition which was relied upon, in view of the two decisions referred to above, is that even though the application for setting aside the sale was dismissed by the executing court yet in appeal against such an order, the matter remains at large before the Appellate Court and confirmation of sale is not still final until disposal of the appeal. The Appellate Court, as indicated earlier, dismissed the appeal preferred against the order of the execution court dismissing the application for setting aside of the sale moved under Order 21 Rule 90 CPC but allowed the application I.A.No. 65 of 1988 moved under Order 34 Rule 5 CPC to set aside the sale on deposit of decretal amount.

4. The auction purchaser namely, Ramaswamy Gounder, preferred Civil Revision under Section 115 CPC against the order dated 23.8.1988 allowing I.A.No. 65 of 1988. No revision seems to have been preferred by the judgment-debtor against the part of the appellate order dismissing their appeal C.M.A.No. 78/1982. The revisional court held that it is permissible to move an application under Order 34 Rule 5 CPC during the pendency of an appeal against the order of the execution court refusing to set aside the sale under Order 21 Rule 90 CPC as the order passed would be in a nebulous state, and the order on being set aside in appeal, the application under Order 34 Rule 5 CPC would be deemed to have been filed before confirmation of the sale. But in the facts of the present case, the revisional court came to the conclusion that the Appellate Court, by the same order first rejected the appeal C.M.A.No. 78 of 1982 preferred against the order passed

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2001 Supreme(SC) 701

Cases Referred (3)