Mortgager if may be allowed to deposit mortgage amount.

This is an application for permission to deposit a sum of Rs. 25, 000/- into Court and to redeem the mortgage forming the subject matter of the suit, O.S. No. 317 of 1975 on the file of Sub-Court, Madurai. The revision arises out of an application to set aside the Court auction sale. The application was dismissed by the trial Court and the appellate Court affirmed the said order of dismissal. The Judgment debtor has filed this revision petition. The petitioner's contention is that the provisions of Order 34, Rule 5, Code of Civil Procedure, can be invoked by him during the pendency of the revision and he is now prepared to deposit the amount, which due under the said mortgage and if time is given to him, he will make the deposit. According to him, if the deposit is made, the Court is bound to set aside the sale.

2. This application is opposed by counsel for the respondents. According to them, the provision under Order 34, Rule 5, C.P.C. for deposit of the amount is not available to the judgment debtor at the stage of revision. It is argued that once the application to set aside the sale is dismissed and the sale is confirmed and thereafter, an appeal against the order of the executing Court is also dismissed, there is no question of the mortgagor invoking the provisions of Order 34, Rule 5, C.P.C. at the stage of revision. Learned Counsel for the respondents submit that the proceeding in revision cannot be treated as a continuation of the original proceeding and a revision cannot be equated to an appeal. According to learned counsel for the respondents, the right of the mortgagor to invoke the provisions of Order 31, Rule 5, C.P.C, has been recognised only in cases of appeals pending against order dismissing the applications to set aside sales.

2A. It is not in dispute now that if an appeal is pending against an order dismissing an application to set aside a sale, it is open to the mortgagor to invoke the provisions of O. 34, Rule 5, C.P.C. and deposit the amount due as per that rule and thereby redeem the mortgagor, after setting aside the sale. The petitioner places reliance on the judgment of the Supreme Court in Maganlal v. M/s. Jaiswal Industries, Neemach, 1989 AIR(SC) 2113, 1990 BankJ 63, 1990 (1) BC 1, 1990 (1) BankCLR 211, 1989 (3) CompLJ 179, 1989 (3) JT 415, 1989 (2) Scale 208, 1989 (4) SCC 344, 1989 (3) SCR 696, 1990 (1) UJ 27 , wherein the Supreme Court held that so long as an appeal is pending against an order of the executing Court dismissing an application for setting aside the sale, the confirmation of sale has not become final and order 34, Rule 5, C.P.C. can be invoked by the mortgagor. The Supreme Court has approved of the judgment of this Court in M. Sevueen Chettiar v. V.A. Narayana Raja, 1984 AIR(Mad) 334. The Supreme Court has / also made reference to an earlier judgment of the Privy Council in Chandra Mani Saha v. Manrjan Bibi, 1934 AIR(PC) 134 : 1934 All(LJ) 6181 and its own judgment in Sri Ranga Nilayam Ramakrishna Rao v. Kandokori Chellayamma, 1953 AIR(SC) 425, 1950 (1) SCR 806, 1974 AIR(Guj) 218.

3. Learned counsel for the respondents contends that in all the cases referred to above, the appeal against the order refusing to set aside the sale was pending and there can be no dispute about the position that during the pendency of an appeal, the provisions of Order 31, Rule 5, C.P.C. can be invoked, but according to learned counsel, once such an appeal is dismissed, the matter attains finality and it cannot be said to be nebulous. According to him, thereafter, the provisions of Order 34, Rule 5, C.P.C. are not available to the mortgagor. Learned counsel makes a distinction between the position 'during the pendency of the appeal' and 'during the pendency of a revision'. He places reliance on the judgment of the Supreme Court in The State of Kerala v. K.M.C. Abdulla and Co., 1965 AIR(SC) 1585, 1965 (16) STC 875, 1965 (1) SCR 601, 1965 (2) ITJ 351 . The relevant passage in the judgment reads as f