The confirmation of a sale by the executing court does not extinguish the mortgagor's right of redemption if an appeal against the validity of the sale is pending.

1. The petitioners in E.A. No. 899 of 1967 (defendants 1, 6 and 7) in O.S. No. 63 of 1963 on the file of the Court of the Subordinate Judge of Madurai are the Appellants in the C.M.A. and the petitioners in the C.M.P. The Civil Miscellaneous Petition filed during the pendeney of the appeal has raised the controversy whether the mortgagors are entitled to redeem the mortgage subsequent to the confirmation of sale by the executing Court, but before the disposal of the appeal preferred against the validity of the sale.

2. The appeal and the petition have come to be filed in the following circumstances For the sake of convenience, the parties will be referred to as they are arrayed in the Civil Miscellaneous Petition. On foot of a mortgage dated 7th January 1961 for Rs. 7500/- executed by the first petitioner and his sons (petitioners 2 and 3 being two of the sons) in favour of the first respondent, the latter obtained a preliminary and a final decree in O.S. No. 63 of 1963 and the hypotheca was brought to sale and it was purchased by the second respondent. The abovesaid mortgage was the third mortgage of the suit property. The second respondent, though the brother of the first respondent, is himself the first mortgagee of the suit propery, the said mortgage being an othi dated 3rd, November 1960 for Rs. 63,000/-. There is also a second and a fourth mortgage of the suit property, but about which detailed mention is not called for in these proceedings. It may, however, be stated that the second mortgage dated 3rd November 1960 for Rs. 12,000/- is in favour of Madurai Cocoa Company, in which the second respondents son, K. Jayaraman is a partner. The fourth mortgage dated 29th November 1962 is in favour of another son the second respondent, by name K. Subramaniam. The preliminary decree passed in O.S. No. 63 of 1963 was for Rs. 11, 531-41 P. and it was passed on 31st October 1963. As already stated, the mortgagors did not pay the money decreed under the preliminary decree and hence the final decree was passed on 16th March 1964. Thereafter, the hypotheca was brought to sale and it appears the mortgagors filed as many as eighteen applications for adjournment of the sale, managing to get adjournments on each occasion by paying sundry amounts, totalling in all to Rs. 7550/., After the nineteenth application for adjournment was dismissed, the hypotheca was sold on 25th July 1966 for a sum of Rs. 46,000/- subject to the prior othi and mortgage, and, as already referred, the second respondent was the successful bidder at the auction.

3. Thereafter, three applications, viz, E.A. No. 895 of 1967, E.A. No. 899 of 1967 and E.A. No. 199 of 1969 were filed under O. 21, R. 90, C.P.C. for the sale being set aside. Various grounds such as the auction-purchaser being a benamidar for the decree-holder, the execution proceedings being taken without notice to the fifth defendant despite his having attained majority even on the date of the suit, the absence of proclamation for the sale held on 25th July 1966, gross under-valuation of the hypotheca in the sale proclamation etc. were set up to assail the sale. The petitions were resisted by the respondents. Ultimately, by a common order dated 26th October 1971, the learned Subordinate Judge of Madurai, after elaborately considering the contentions of the petitioners in the respective petitions, dismissed all of them holding that the sale had been properly held and was not vitiated by any defect or material irregularity. Thereafter, the sale in favour of the second respondent was confirmed and the sale certificate itself was engrossed on stamp papers. As the second respondent-auction-purchaser was already in possession as otherwise of the property, which is a house property in South Masi Street, Madurai, the question of the auction-purchaser taking possession of the property in pursuance of the sale did not arise.

4. Aggrieved by the dismissal of their petition, E.A. No. 899 of 1967, the petition