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2022 Supreme(Mad) 1625
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
Basker - Appellant
Versus
Ponnammal & Others - Respondent
C.R.P.(NPD)(MD). No. 1485 of 2012 & Tr.CMA(MD). No. 376 of 2022 & MP(MD). No. 1 of 2012 & CMP(MD). No. 3283 of 2022
Decided On : 25-04-2022
For the Petitioner:Jerin Mathew, P. Jayaprakash Narayan, Advocates. For the Respondents:R3, G. Prabhu Rajadurai, K. Sivabalan, Advocates.
The confirmation of a sale without numbering an application under Order 21 Rule 90 C.P.C is invalid and illegal, and the right to deposit mortgage money is available until the sale is confirmed.
Headnote:
Order 21 Rule 90 C.P.C - Mortgage - Order 34 Rule 5 C.P.C - Order 21 Rule 92 C.P.C - Order 21 Rule 93 C.P.C
Fact of the Case:
The judgment debtor filed applications under Order 21 Rule 90 and Order 34 Rule 5 C.P.C challenging the sale of mortgaged property and seeking permission to deposit the mortgage money. The Executing Court confirmed the sale without numbering the Order 21 Rule 90 application. The High Court directed the Executing Court to number the application and allowed the judgment debtor to file an application under Order 34 Rule 5 C.P.C. The Supreme Court confirmed the High Court's order.
Finding of the Court:
The Executing Court's confirmation of the sale without numbering the Order 21 Rule 90 application was deemed invalid and illegal. The judgment debtor's right to deposit the mortgage money was upheld until the sale was confirmed. The Executing Court rightly allowed the applications under Order 21 Rule 90 and Order 34 Rule 5 C.P.C, and the mortgagor was entitled to redeem the property.
Issues: Validity of sale confirmation without numbering Order 21 Rule 90 application, entitlement to deposit mortgage money, and redemption of the property.
Ratio Decidendi: Confirmation of sale without numbering Order 21 Rule 90 application is invalid and illegal. The right to deposit mortgage money is available until sale confirmation. The mortgagor is entitled to redeem the property.
Final Decision: The Civil Revision Petition and the Transfer Civil Miscellaneous Appeal were dismissed, confirming the Executing Court's order. The auction purchaser was entitled to a refund of the purchased money and accrued interest.
JUDGMENT
(Prayer in CRP(MD).No.1485 of 2012: Civil Revision Case is filed under Section 115 of C.P.C, to set aside the fair and decreetal order of the I Additional Sub Judge, Trichy in E.A.No.356 of 2011 in E.P.No.367 of 1995 in O.S.No.756 of 1989 dated 12.12.2011 and allow this revision with costs.
Tr.CMA(MD).No.376 of 2022: Civil Miscellaneous Appeal is filed under Section 24 of Code of Civil Procedure, to withdraw or transfer CMA.No.54 of 2012 pending on the file of the I Additional District Court, Trichy to the file of this Hon'ble Court be heard along with C.R.P(MD).No.1485 of 2012 pending before this Court.)
Common Order
1. The second respondent in CRP(MD).No.1485 of 2012 /third respondent in Tr.CMA(MD).No.376 of 2022 had filed O.S.No.756 of 1989 for recovery of money based on mortgage. A preliminary decree was passed on 22.10.1991. Since the judgment debtor has not deposited the amount, a final decree was passed on 14.08.1994.
2. After the final decree was passed, the petition mentioned property was brought to Court auction on 16.12.1998 and one Basker had purchased the same in the Court auction. An application was filed by the judgement debtor under Order 21 Rule 90 to set aside the sale on the ground of material irregularity and fraud. The Executing Court without even numbering the same, rejected the said application in the SR stage itself. This rejection order was challenged in CMA.No.261 of 2002 before the Fast Track Court No.I, Trichirappalli. The said appeal was dismissed on 10.11.2005. The order in the appeal was challenged by way of CMSA(MD).No.17 of 2007 before this Hon'ble Court. This Court by its order dated 15.07.2011 allowed the second appeal and remitted the matter back to the file of the I Additional Subordinate Court, Trichirappalli to dispose off the same after taking evidence to be adduced on both sides. In the said order, this Court has also granted liberty to the judgment debtor to file a petition under Order 34 Rule 5 of C.P.C, before the Executing Court. This order was challenged in SLP(Civil).No.25707 of 2011 before the Hon'ble Supreme Court. The said SLP was dismissed by the Hon'ble Supreme Court on 19.09.2011. Thus the said order has become final.
3. The Executing Court had numbered Order 21 Rule 90 of C.P.C application as E.A.No.355 of 2011. In the meantime, pursuant to the order granted by the High Court, the judgment debtor had filed E.A.No. 356 of 2011 under Order 34 Rule 5 of C.P.C seeking permission of the Court to deposit a sum of Rs.1,19,084/-. Both these applications were heard together by the Executing Court. The trial Court allowed E.A.No.356 of 2011 and directed the judgment debtor to deposit amount within a period of two months that is on or before 14.02.2012.
4. The Executing Court also allowed E.A.No.355 of 2011 on condition that the amount should be deposited on or before 15.02.2012. As per the report of the learned Principal Subordinate Judge, Trichirappalli, the amount has been deposited on 12.12.2011 itself.
5. Challenging the order passed in E.A.No.356 of 2011 allowing Order 34 Rule 5 application, CRP(MD).No.1485 of 2012 has been filed. Challenging the order passed in E.A.No.355 of 2011, CMA.No.54 of 2012 was filed before the I Additional District Court, Trichirappalli. Tr.CMP(MD).No.176 of 2013 was filed before this Court to transfer CMA.No.54 of 2012 to the file of the High Court to be heard along with CRP(MD).No.1485 of 2012. The said transfer CMP was allowed on 29.03.2016. Based upon the said order, CRP(MD).No.1485 of 2012 and Tr.CMA.No.376 of 2022 are listed today.
6. The learned counsel for the petitioner has contended that after so many years, the judgment debtor cannot be permitted to deposit the amount invoking Order 34 Rule 5 C.P.C. He further contended that the sale has already taken place and it has also been confirmed. After confirmation of the sale, an application under Order 21 Rule 90 C.P.C, is not maintainable and the judgment debtor cannot be permitted to make paymen
