JUDGMENT

P. Sathasivam, J.

1) This appeal is directed against the final judgment dated 11.12.1998 of the High Court of Karnataka at Bangalore in R.F. A. No. 465 of 1990 by which the High Court allowed the first appeal filed by the respondents herein.

2) The facts, in a nutshell, are as under: The legal representatives of defendant No.2 are the appellants in this appeal. On 19.2.1948, the plaintiffs' predecessor executed a usufructory mortgage in favour of the appellants herein for a sum of Rs.10,000/-. The terms of the said mortgage deed were that the mortgagee shall remain in possession of the mortgaged property without paying rent and that the mortgage amount of Rs.10,000/- shall carry no interest. The period of redemption was five years from the date of mortgage. However, the mortgagers continued in possession of the mortgaged property as tenants of the mortgagee on a monthly rent of Rs.97.50. As the mortgagors failed to pay the rent, on 19.5.1952, the mortgagee filed suit being O.S. No. 120/51-52 on the file of the Ist Munsif, Bangalore for arrears of rent. The said suit was decreed. In pursuance of the said decree, the mortgagee (2nd defendant) filed Execution Petition No. 1002/51-52 and the property was put on auction sale by the executing Court. Mortgagee being the highest bidder purchased the schedule property in court auction. Sale was confirmed. The respondents/mortgagors neither objected for the sale nor confirmed the sale or taken any steps to set aside the sale over three decades. On 18.2.1983, the plaintiffs/respondents, after nearly three decades, filed a suit being O.S. No. 632 of 1983 on the file of the III Addl. City Civil Judge, Bangalore for a decree of redemption of the mortgage of the suit schedule property sold in public auction as long back as on 11.9.1952. The Civil Judge, after considering both oral and documentary evidence, dismissed the suit with costs on 31.7.1990. Aggrieved by the said order, the plaintiffs filed R.F.A. No. 465 of 1990 before the High Court. The High Court allowed the appeal decreeing the suit for redemption. Against the impugned judgment of the High Court, the defendants filed the present appeal by way of special leave.

3) Heard Mr. S.B. Sanyal, learned senior counsel appearing for the appellants, Mr. P. Vishwanath Shetty, learned senior counsel for the contesting respondent Nos. 1(i) to (vii) and 7 and Mr. R.P. Wadhwani, learned counsel appearing for respondent Nos. 2,3,5,6,8 & 9.

4) Mr. Sanyal, learned senior counsel for the appellants mainly contended that the money decree (O.S.No 120/51-52) obtained is an independent one and not connected with the mortgage claim and in execution of the money decree the property was sold on 11.09.1952, the relationship of mortgagor and mortgagee is not subsisting, in such circumstances, Order XXXIV Rule 14 CPC is not applicable and the trial Court rightly dismissed the suit, however, the High Court committed an error in granting preliminary decree for redemption as if the original mortgage subsists. According to him, the application of Order XXXIV Rule 14 CPC is wholly illegal and setting aside the sale of 1951-52 is inequitable especially in view of the fact that there was no objection from the respondents for sale or confirmation of the sale and of the fact that they have not taken any steps to set aside the sale for over three decades. On the other hand, Mr. Vishwanath Shetty, learned senior counsel for the contesting respondents submitted that O.S. No 120/51-52 brought by the appellants was very much for seeking satisfaction of the claims patently arising under the mortgage of the suit schedule property and the same not being a suit for sale instituted in enforcement of the mortgage in question clearly comes under the pale of the bar under Order XXXIV Rule 14 CPC. He further submitted th