Vacation of order confirming sale.

These connected appeals are directed against the order of the learned Subordinate Judge of Coimbatore in E.A. Nos. 80 and 525 of 1963 in O.S. No. 37 of 1955. The prior facts necessary for the consideration of these appeals are briefly the following: —

The schedule property was made the subject of a simple mortgage executed on 7th July, 1949, by Nagarathinammal and Chandrasekharan respondents 1 and 2 in the appeals. R.K. Kandaswami, the fourth respondent, obtained a preliminary decree on the mortgage on 14th August, 1956, and thereafter, a final decree on 2nd March, 1957, for the sale of the hypotheca. The property Was sold in Court auction on 2nd April, 1958, and purchased by Dhandayuthapani Chettiar the appellant in A.A.O. Nos. 232 of 1964 and 410 of 1964, On 14th June, 1958, Nagarathinammal, Chandrasekharan, and one Ramaswami Gounder who obtained an agreement for sale of the hypotheca in his favour from the mortgagors, filed an application under Order 21, rule 90, Civil Procedure Code, for setting aside the sale, on account of material irregularities in the conduct of the sale. They also furnished security required under the Rules. But on account of some alleged default, this application was dismissed on 26th July, 1958. The sale was confirmed on 26th July, 1958, itself, and the auction-purchaser took possession on 19th November, 1958. Thereafter, Chandrasekharan, Nagarathinammal and Ramaswami Goundar filed appeals, A.A.O. Nos. 105 and 106 of 1959 in the High Court. In A.A.O. No. 105 of 1959, a Bench of this Court, consisting of Ramachandra Iyer, Chief Justice and one of us, passed an order on 8th February, 1962, holding that the’ learned Subordinate Judge was under a misapprehension, in finding that the appellants were in default, and, thereafter, the order of the lower Court dismissing the application under Order 21, rule 90, Civil Procedure Code, was set aside, and the lower Court was directed to dispose of that application in accordance with law. The appeal which was simultaneously heard, A.A.O. No. 106 of 1959, was against the order confirming the sale, and, therein, the Bench observed, that no separate orders were necessary, in view of the allowance of the appeal A.A.O. No. 105 of 1959, and the restoration and remand of the application under Order 21, rule 90, Civil Procedure Code, for fresh disposal.

During the pendency of the aforesaid two appeals in the High Court the auctionpurchaser conveyed the property to one Ramathal on 19th November, 1958, and she is now the appellant in A. A. O. Nos. 370 of 1963 and 207 of 1964 before us. After the restoration of the petition under Order 21, rule 90, Civil Procedure Code, Chandrasekharan, Nagarathinammal and Ramaswami Goundar filed on 27th November, 1962, an application under Order 34, rule 5, Civil Procedure Code, E.A. No. 80 of 1963, for leave to deposit the mortgage money and the other statutory charges and solatium to the auction-purchaser, and prayed for treating the mortgage security as discharged, and for getting back possession of the property both from the auction-purchaser as well as the purchaser from him. Simultaneously, they filed E.A. No. 525 of 1963, under sections 47 and 151, Civil Procedure Code, to set aside the confirmation of the sale, in view of the orders passed in A.A.O. No. 105 of 1959 and A.A.O. No. 106 of 1959. These applications were strenuously opposed by the decree-holder, the auction-purchaser in the Court auction sale, and the private purchaser from the auction-purchaser.

The learned Subordinate Judge held that the effect of the restoration of the petition filed under Order 21, rule 90, Civil Procedure Code, by the appellate order of this Court, was, by implication, to set aside the confirmation of the sale. Therefore, the application E.A. No. 525 of 1963 for setting aside the confirmation of the sale, was treated as unnecessary and, as one filed merely by way of abundant caution. The learned Subordinate Judge also held in E. A.