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CASE NO.:

Appeal (civil) 2126-2127 of 2000

PETITIONER:

KHARAITI LAL

RESPONDENT:

RAMINDER KAUR AND ORS.

DATE OF JUDGMENT: 15/03/2000

BENCH:

S. SAGHIR AHMAD & D.P. WADHWA

JUDGMENT:

JUDGMENT

2000 (2) SCR 445

The Judgment of the Court was delivered by S. SAGHIR AHMAD, J. Leave

granted.

The appellant, who was the owner of a plot of land measuring one and a half

kanal, situated in Industrial Area, Chandigarh, had mortgaged the said land

with one Col. Joginder Singh for a sum of Rs. 20,000 after raising certain

constructions thereon.

Col. Joginder Singh subsequently filed a suit for foreclosure in order to

recover the mortgage money by sale of Industrial Plot No. 255-P and the

building constructed thereon. A preliminary decree was passed in that suit

on January 23, 1976, directing the appellant to deposit a sum of Rs.

28,187.50 along with future interest at the rate of 9 per cent per annum on

or before March 23, 1976. The amount was not deposited and, therefore, Col.

Joginder Singh filed an application for final decree which was passed by

the Sub-ordinate Court, Chandigarh, on April 8, 1976. The decree was put to

execution and in execution proceedings, the property was auctioned on

August 25, 1976. Nazar Singh, who is now represented by the present

respondents, purchased the property at the auction for a sum of Rs. 45,000.

The auction-sale was challenged by the appellant by filing an application

under Order 21 Rule 90 C.P.C. on August 28, 1976. The objections were

rejected on November 28, 1977 and on the next day, namely, on November 29,

1977, the Court confirmed the auction-sale.

The appellant, thereafter, filed two appeals (Appeal Nos. 373 and 374 of

1977) in the High Court. During the pendency of those appeals, he also

deposited a sum of Rs. 47,250 on May 3, 1985 and another amount of Rs. 525

was deposited by him on August 19, 1985. When the appeals came up for

hearing before the Single Judge, it was noticed that the appellant had

already deposited the requisite amount under Order 34 Rule 5 of the Code of

Civil Procedure and, therefore, the appeals were allowed on August 30, 1985

and the auction-sale as also its confirmation were set aside with the

direction that the amount, deposited by the appellant, would be paid to the

heirs of Nazar Singh who had, in the meantime, died and was substituted in

the appeals by the present respondents. The judgment passed by the Single

Judge was challenged by the respondents in the Letters Patent Appeals filed

before the Division Bench, which allowed both the appeals by the impugned

judgment dated July 2, 1998 and set aside the judgment passed by the Single

Judge. It is in these circumstances that the present appeals have come up

before us.

Learned counsel for the appellant has contended that the Division Bench of

the High Court was in error in interfering with the judgment passed by the

Learned Single Judge on the ground that the deposits, made by the appellant

during the pendency of the appeals in the High Court, would not enure to

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his benefits and could not be treated to have been made under Order 34 Rule

5 C.P.C. as the auction-sale had already been confirmed. It is further

contended that Order 34 Rule 5 C.P.C. contemplates deposit before

"confirmation of sale" and if the order by which the sale was confirmed had

been challenged in appeal, the sale would not be treated as confirmed

unless the appeal was disposed of. It is further contended that since the

appellant, in the instant case, had made the deposits during the pendency

of the appeals in the High Court, which were directed against the auction-

sale as also its confirmation, the deposits so made were valid and could

not have been treated to have been made "after confirmation."

Learned counsel for the respondents, on the contrary, contended that when a

preliminary decree was passed by the trial court, the appellant was allowed

time to deposit the whole of the decretal amount by a specific date,

namely, by March 23, 1976 but the appellant did not do so and, conse-

quently, the property was auction-sold. The sale was challenged by the

appellant through objections under Order 21 Rule 90 C.P.C., which were

rejected and the sale was thereafter confirmed. It is contended that after

rejection of the objections under Order 21 Rule 90 C.P.C., the Executing

Court was bound to confirm the sale and since the sale was confirmed on the

next day of the rejection of the objections under Order 21 Rule 90 C.P.C.,

the sale, for all practical purposes, shall be deemed to have been

confirmed on that day. Any deposit, made by the appellant thereafter, would

be of no avail and on the basis of that deposit, the sale could not be set

aside. It is contended that the Division Bench of the High Court was

justified in setting aside the judgment passed by the Single Judge.

A perusal of the judgment passed by the Division Bench would show that

after setting out the facts, it formulated a question as under :-

"The question that arises for consideration is - when can a sale of the

mortgaged property be said to have been confirmed? The ancillary question

would be - Can a deposit be made under Order 34 Rule 5 even when an appeal

is pending?"

Thereafter, the Division Bench proceeded to answer the question by holding

ultimately that the deposit of money, during the pendency of appeals in the

High Court, could not be treated as a valid deposit under Order 34 Rule 5

C.P.C. For this purpose, it placed reliance upon a decision of this Court

in Hukamchand v. Bansilal & Ors., [1967] 3 SCR 695=AIR (1968) SC 86. The

decision in Hukamchand's case (supra) was given on the particular facts of

that case. It was noticed by the Court, in that case, as under :- "Though

O.XXXIV r.5(l) recognises the right of the judgment-debtor to pay the

decretal amount in an execution relating to a mortgage decree for sale at

any time before the confirmation of sale, the rule does not give any power

to the court to grant time to deposit the money after the final decree has

been passed. It is not open to the court to go on fixing date after date

and postponing confirmation of sale merely to accommodate a judgment-

debtor."

The Court did not hold in that case that a deposit under Order 34 Rule 5

C.P.C. could not be made during the pendency of an appeal against the order

by which the sale was confirmed.

The entire case law was reviewed by this Court in a recent decision in U.

Nilan v. Kannayyan (Dead) through Lrs., [1999] 8 SCC 511=(1999) 6 Scale

358=JT (1999) 7 SC 621, in which also the Court had formulated the

following question :-

"What is the meaning of the phrase "before the confirmation of sale "may

now be considered in the light of other relevant provisions of the Code of

Civil Procedure."

The above question is identical to the question framed by the Division

Bench of the High Court in this case. This Court, on a consideration of a

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number of decisions, including the decision of this Court in Hukamchand's

case (supra) laid down that if an appeal was pending against an order

refusing to set aside the sale, the confirmation of sale as also the

issuance of Sale Certificate would be in a nebulous state and,

consequently, it would be open to the judgment-debtor to invoke the

provisions of Order 34 Rule 5 C.P.C. and make the necessary deposits to

save his property from being transferred to a third person or, may be, to

the decree-holder, in execution of the decree passed in the mortgage suit.

It may be mentioned that in U. Nilan's case (supra), reliance was also

placed upon the decision of this Court in Maganlal & Anr. v. Jaiswal

Industries, Neemach & Ors., [1989] 4 SCC 344=[1989] 3 SCR 696=AIR (1989) SC

2113, in which it was held that the sale does not become absolute or

irrevocable merely on passing an order confirming the sale under Order 21

Rule 92, but it would attain finality on the disposal of the appeal, if

any, filed against an order refusing to set aside the sale. This decision,

though rendered by this Court in 1989, was not noticed by the Division

Bench of the High Court.

For the reasons stated above, we allow the appeals, set aside the judgment

dated July 2, 1998, passed by the Division Bench and restore the judgment

dated 30.8.1985, passed by the Single Judge. There shall be no order as to

costs.