The right of redemption of a mortgagor is not extinguished by a decree for sale but by the sale.

Headnote:
CO-OPERATIVE SOCIETIES ACT, 1912 - ORDER 34, RULE 5 OF THE CODE OF CIVIL PROCEDURE - MORTGAGE - REDEMPTION - RIGHT OF REDEMPTION - EXTINGUISHMENT - SALE - CONFIRMATION OF SALE - WAIVER - CONSENT ORDER - JURISDICTION - DISCRETION OF COURT - SUMMARY OF THE LEGAL FRAMEWORK APPLIED BY THE COURT IN REACHING ITS DECISION: The right of redemption of a mortgagor is not extinguished by a decree for sale but by the sale. Order 34, Rule 5 of the Code of Civil Procedure, which provides for the right of redemption after a preliminary decree and before the final decree, is not applicable to an award given under the Co-operative Societies Act, 1912. However, the principles of Order 34, Rule 5 should be applied to such awards. The Court has the jurisdiction to grant an adjournment for the deposit of the decretal amount even after the expiry of the period prescribed under Order 21, Rule 89 of the Code of Civil Procedure, if the circumstances of the case so warrant. The confirmation of sale by the Court after refusing an adjournment for the deposit of the decretal amount is not justified and is liable to be set aside.
Fact of the Case:

The appellants, who were judgment debtors, had mortgaged their property in favor of the respondent society. The Registrar of Co-operative Societies, acting under the Co-operative Societies Act, 1912, passed an order directing the appellants to pay a certain amount to the society. The appellants failed to pay the amount, and the society applied to the civil court for recovery of the amount under the decree. The property of the appellants was brought to sale and was purchased by the respondent auction-purchaser. The appellants applied for setting aside the sale under Order 21, Rule 90 of the Code of Civil Procedure, but their application was rejected. They then filed an appeal to the District Court, which set aside the order of the trial court and remanded the matter. The auction-purchaser filed an appeal to the High Court, which set aside the order of the District Court and confirmed the order of the trial court.
Finding of the Court:

The High Court held that the order passed by the Registrar of Co-operative Societies was not a preliminary decree or a final decree in terms of the provisions of Order 34 of the Code of Civil Procedure, but an award, pure and simple, which was enforceable through the machinery of the civil court. Therefore, Order 34, Rule 5 of the Code of Civil Procedure was not applicable to the case. The Court further held that the right of redemption of the appellants was not extinguished by the decree for sale but by the sale. The Court also held that the appellants had not waived their right to redeem the property by applying for an adjournment for the deposit of the decretal amount.
Issues: 1. Whether Order 34, Rule 5 of the Code of Civil Procedure is applicable to an award given under the Co-operative Societies Act, 1912? 2. Whether the right of redemption of a mortgagor is extinguished by a decree for sale or by the sale? 3. Whether the Court has the jurisdiction to grant an adjournment for the deposit of the decretal amount even after the expiry of the period prescribed under Order 21, Rule 89 of the Code of Civil Procedure? 4. Whether the appellants had waived their right to redeem the property by applying for an adjournment for the deposit of the decretal amount?
Ratio Decidendi: 1. Order 34, Rule 5 of the Code of Civil Procedure is not applicable to an award given under the Co-operative Societies Act, 1912, because the award is not a preliminary decree or a final decree in terms of the provisions of Order 34. However, the principles of Order 34, Rule 5 should be applied to such awards. 2. The right of redemption of a mortgagor is not extinguished by a decree for sale but by the sale. 3. The Court has the jurisdiction to grant an adjournment for the deposit of the decretal amount even after the expiry of the period prescribed under Order 21, Rule 89 of the Code of Civil Procedure, if the circumstances of the case so warrant. 4. The appellants had not waived their right to redeem the property by applying for an adjournment for the deposit of the decretal amount.
Final Decision: The High Court set aside the order of the lower court and allowed the appellants to redeem the property by depositing the decretal amount.

JUDGMENT - Patel, J.

1. This is an appeal under Clause (15) of the Letters Patent from the judgment of Badkas, J. The appeal arises under the following circumstances:

The two appellants who were originally judgment debtors were members of the Vidarbha Premier Co-operative Housing Society, Ltd., Nagpur, respondent No. 2. They created a mortgage of their property in favour of respondent No. 2 on 16-10-1950. The amount due under the mortgage was not paid and the matter, was referred to the Registrar of Co-operative Societies under the Cooperative Societies Act, 1912, as applied to Madhya Pradesh. Under Rule 27 of the rules made by the State Government under the Act, the Registrar had authority cither to enquire into the matter himself or refer it to arbitration. He decided the matter himself and made an order on 1-5-1957 that the judgment-debtors do pay a sum of Rs. 9,412/6/9 and interest at 12 per cent, per annum from 1-8-1953 till satisfaction of the debt to the respondent Society. He further directed that it he did not pay the amount in cash to the Society, the property mentioned therein shall be brought to sale for satisfaction of the amount, if the money realized by the sate of the mortgaged property proved insufficient and the debt remained unsatisfied, he provided that the Society shall have a right to proceed against the judgment, debtors and their movable and immovable property. The rest of the decree is not material to the present discussion. The judgment-debtors did not pay the amount as directed by the decree of the Registrar and the Society therefore made an application to the Civil Court for recovery of the amount under the decree. In the execution proceedings, the property of the judgment-debtors was brought to sale. The sale was held on 7-4-1958 when the bid was knocked down in favour of respondent No. 1.

2. On 3-5-1958 the judgment-debtors made an application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the sale. On 7-10-1958 at the hearing of this application, the judgment-debtor made an application for a months time to deposit the decretal amount and expressed their desire to withdraw their application then pending. To this application the decree-holder and the auction-purchaser did not object. The Court therefore granted time for deposit of the amount till 21-11-1958 and the main application under Order 21, Rule 90, was allowed to be withdrawn and was dismissed.

3. A day previous to the date fixed for payment, i.e. on 20-11-1958, the judgment-debtors made an application for acceptance of the deposit of a sum of Rs. 11,326/3/6 towards the mortgage amount and an additional sum of Rs. 1275/- being the commission of the auction-purchaser and prayed for further time for deposit of the balance. This application was rejected by the learned Judge. On the next day, i.e. on 21-11-1958 the learned Advocate appearing on behalf of the judgment-debtors asked for extension of time to which the respondents raised an objection. The request was therefore not granted, and since the application under Order 21, Rule 90, stood dismissed the Court confirmed the sale.

4. Against this judgment the judgment-debtors went in appeal to the District Court. The learned District Judge came to the conclusion that the trial Court was in error in refusing to extend time. He therefore set aside the order made and remanded and the matter to the trial Court.

5. Against this order, the auction-purchaser filed an appeal to the High Court. The appeal was heard by Badkas, J. who set aside the order of the District Judge and confirmed the order of the trial Court. The District Judge, in giving relief to the judgment-debtors, had held that the order or decision made by the Registrar was in the nature of a preliminary decree and not a final decree and therefore the judgment-debtors were entitled under the award to deposit the amount at any time before the sale was confirmed. Badkas, J. disagreed with this view. He held that the dec

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