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PETITIONER:

U. NILAN

Vs.

RESPONDENT:

KANNAYYAN (DEAD) THROUGH LRS.

DATE OF JUDGMENT: 05/10/1999

BENCH:

S.Saghir Ahmad, S.Rajendra Babu

JUDGMENT:

S.SAGHIR AHMAD, J.

The facts labyrinthically placed in the jargon of

hosts of applications, appeals and revisions, are summed up

below.

The respondent who is since dead and is now

represented by his legal representatives (hereinafter

referred to as `respondent'), had mortgaged his properties

by deposit of title deeds in favour of the appellant in

1976. On January 9, 1978, the appellant filed O.S. No.

21/78 for the recovery of mortgage money in the Court of

Sub-Judge, Thanjore. A preliminary decree in the suit was

passed on 10th September, 1979 for a sum of Rs. 73,915.

This was followed by a final decree passed on 21.3.1980.

Since the respondent did not pay the decretal amount

to the appellant, the latter, namely, the appellant filed an

Execution Application (E.P.No.164/80) for the sale of the

hypothecated property. When the property was put up for

sale on 25.6.1981, no person was available to offer his bid

and, therefore, E.P.No.164/80 was consigned to record as

closed.

The appellant, thereafter, filed E.P.No.106/81 for

sale of the mortgaged properties but when this application

too failed to fetch bidders for the properties which were

put up for sale on 25.1.1982 and 25.3.1982, the appellant

himself, through another application, namely E.A.No. 88/82,

sought permission of the court to bid at the auction sale

and to set off the decretal amount against the sale price.

This application was allowed on 28.4.1982. The respondent,

in the meantime, filed E.As.No. 115 and 116 of 1982

claiming relief under the Debt Relief Act but the

Applications were rejected by the Court. In the auction

which was held on 29th April, 1982, the appellant offered

his bid in the sum of Rs.75,005/-. The case was directed to

come up on 1st July, 1982 for confirmation of sale. In the

meantime on 21st of June, 1982, respondent filed E.A.No.

151/82 under Order 21 Rule 90 read with Section 47 CPC for

setting aside the sale held on 29.4.1982. This Application

was contested by the appellant who indicated in his counter

affidavit that there was no irregularity or fraud committed

in conducting the sale.

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On 18th of September, 1982, E.P. No.151/82 was

dismissed in default and the sale was confirmed under Order

21 Rule 92 C.P.C. The respondent, thereafter, filed E.A.No.

293/82 for restoration of E.P.No. 151/82 which was

dismissed in default. He also filed another application,

namely, E.A.No. 294/82 for setting aside the confirmation

of sale. Application for setting aside the sale was

rejected by the Executing Court on 2.4.1983 as not

maintainable and on the same day, E.A.No. 294/82 was also

dismissed.

The respondent then filed C.M.A. No.267/83 in the

High Court against the order by which E.A.No. 294/82 for

setting aside the confirmation of sale was rejected. He

also filed C.M.A. No. 462 of 1983 in the High Court

against the order rejecting the Application (E.A. No. 293

of 1982) for restoration of E.A. No. 151 of 1982. In

C.M.A. No. 267 of 1983, respondent moved an application

(C.M.P. 7710 of 1983) for an order of interim stay which

was granted subject to his depositing Rs.25,000/- in the

court before 30.6.83. This order was complied with and the

respondent deposited that amount in the Executing Court on

24.6.83.

While C.M.A. No. 267 of 1983 and C.M.A. No. 462 of

1983 were pending in the High Court, the respondent made an

Application (E.A. No. 226 of 1983) in the Suit (O.S.No.

21 of 1978) for depositing the balance of the mortgage

amount under Order 34 Rule 5 CPC. While this Application

was pending, C.M.A. No. 267 of 1983 was allowed by the

High Court by its judgment dated 21st July, 1983 and the

order passed by the Executing Court in E.A. No. 294 of

1982 was set aside and the case was remanded to the

Executing Court to hear and decide the Application (E.A.

No. 294 of 1982) afresh after allowing the parties to lead

such evidence as they considered necessary. In the

meantime, by order dated 27th July, 1983, respondent's

Application ( E.A. No.226 of 1983) under Order 34 Rule 5

was dismissed on the ground that it was not maintainable as

the High Court, in its judgment dated 21st July, 1983 while

remanding the case, had not indicated anything in that

regard nor had it issued any direction. Against this order,

the respondent filed C.R.P. No. 3473 of 1983.

C.M.A. No. 462 of 1983 and C.R.P. No. 3473 of 1983

were taken up together and the High Court by its judgment

dated 7th September, 1983, allowed both the matters with a

direction to the lower court to issue challan for the

deposit of Rs.62,563/- by the respondent without prejudice

to the contentions of the parties.

On 16th September, 1983, when the matter was taken up

by the trial court, respondent's Application (E.A. No.226

of 1983) was allowed and the balance amount of Rs.62,563/-,

which was directed to be deposited, was accepted and it was

recorded that the mortgage was discharged.

After remand by the High Court, E.A. No. 293 of 1982

and E.A. No. 294 of 1982 were both dismissed by the trial

court on 12th December, 1983 with the finding that the

respondent had committed forgery by filing and relying upon

false documents for which he was liable to be prosecuted.

Against this judgment, the respondent filed C.M.A. 19 of

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1984 and C.M.A. 74 of 1984. While these two appeals were

pending in the High Court, the respondent filed I.A. 337 of

1984 before the trial court for return of documents under

Order 34 Rule 5A CPC, but the application was rejected by

the trial court on 6th September, 1985, against which the

respondent filed C.R.P. No.4402 of 1985 in the High Court.

C.M.A. No.19 of 1984 and C.M.A. No.74 of 1984, as

also C.R.P. No.4402 of 1985 were taken up together by the

High Court and by the common judgment dated 14th January,

1988, C.M.A. 19 of 1984 and C.M.A. 74 of 1984 were

dismissed, but C.R.P. 4402 of 1985 was allowed with the

findings : (i) Application under Order 34 Rule 5 had been

filed during the pendency of the appeal in the High Court

and the High Court in that proceeding had already directed a

challan to be issued to the respondent to enable him to

deposit the balance of the mortgage money, which he did

deposit though without prejudice to the respective

contentions of the parties. (ii) After remand, respondent's

Application No. 226 of 1983 was allowed and the balance

amount of Rs.62,563/-was deposited by the respondent, which

order became final as it was never challenged by the

appellant. Therefore, the Application, namely, I.A. 337 of

1984 for return of documents, which was dismissed by the

trial court on 6.9.1985, was liable to be allowed.

The High Court reversed the order of the trial court

and allowed the Revision. It is against this judgment that

the present appeal has been filed.

Mr. A.T.M. Sampath, learned counsel appearing on

behalf of the appellant, has contended that the application

of the respondent for setting aside the sale having been

dismissed in default by the trial court and the application

for restoration also having been dismissed, the sale as also

its confirmation in favour of the appellant, shall be

treated to have been upheld by the High Court and

consequently the application of the respondent under Order

34 Rule 5 CPC as also the application filed under Order 34

Rule 5A for return of documents, were liable to be

dismissed. It is contended that the sale having been

confirmed in favour of the appellant and the confirmation of

sale having been upheld by the High Court, there was no

jurisdiction left in the High Court to allow the application

under Order 34 Rule 5 CPC. It is also contended that the

High Court passed contradictory orders. It is pointed out

that as respondent's application for setting aside that

order, by which his application for setting aside the sale

was dismissed in default, was rejected and the confirmation

of sale in favour of the appellant was thus upheld, the High

Court passed a contradictory order that mortgage amount

could be legally deposited by respondent and on the amount

being so deposited, the mortgage stood discharged.

Learned counsel for the respondent, on the contrary,

contended that when the application for setting aside the

order by which E.A. No. 151 of 1982 was dismissed for

default was rejected, an appeal was filed in the High Court

and it was during the pendency of that appeal that an

application under Order 34 Rule 5 C.P.C. was filed by the

respondent for depositing the balance of the mortgage money.

This application was ultimately allowed and the balance of

the amount of Rs.62,563/- was deposited by the respondent

and consequently the mortgage was discharged. The

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application under Order 34 Rule 5 C.P.C. was clearly

maintainable even at that stage. It is contended that

C.M.A. No. 267 and A.A.O. No. 462 of 1983 were allowed

by the High Court and the case was remanded to the Executing

Court for deciding the application of the respondent for

setting aside the sale afresh. That being the stage of the

proceedings, the application under Order 34 Rule 5 C.P.C.

cannot be said to be not maintainable. In fact, the

application, it is contended, was clearly maintainable and

the Execution Court by its order dated 16.9.1983 had rightly

discharged the mortgage. This order, it is contended, had

not been challenged by the appellant at any stage and has

become final. The appellant cannot, therefore, rely upon

the order dated 16.9.1983 by which the sale in his favour

was confirmed.

In view of the respective contentions made by the

learned counsel for the parties, the question which is

required to be decided by us in this appeal is whether the

application filed by the respondent under Order 34 Rule 5

C.P.C. was maintainable even after confirmation of sale.

The further question which is required to be decided is

whether an application under Order 34 Rule 5 C.P.C. would

be maintainable during the pendency of the appeal against

the order of the Executing Court by which the application

for setting aside the sale was rejected.

Order 34 Rule 5 provides as under:-

"XXXIV. SUITS RELATING TO MORTGAGES OF IMMOVABLE

PROPERTY.

R. 5. Final decree in suit for sale.

(1) Where, on or before the day fixed or at any time

before the confirmation of sale made in pursuance of a final

decree passed under sub-rule (3) of this rule, the defendant

makes payment into Court of all amounts due from him under

sub- rule (1) of Rule 4, the Court shall, on application

made by the defendant in this behalf, pass a final decree

or, if such decree has been passed, an order ----

(a) ordering the plaintiff to deliver up the documents

referred to in the preliminary decree,

and, if necessary, ---

(b) ordering him to transfer the mortgaged property as

directed in the said decree,

and, also, if necessary ---

(c) ordering him to put the defendant in possession of

the property.

(2) Where the mortgaged property or part thereof has

been sold in pursuance of a decree passed under sub-rule (3)

of this rule, the Court shall not pass an order under

sub-rule (1) of this rule, unless the defendant, in addition

to the amount mentioned in sub-rule (1), deposits in Court

for payment to the purchaser a sum equal to five per cent of

the amount of the purchase-money paid into Court by the

purchaser.

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Where such deposit has been made, the purchaser shall

be entitled to an order for payment of the amount of the

purchase-money paid into Court by him, together with a sum

equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has

not been made, the Court shall, on application made by the

plaintiff in this behalf, pass a final decree directing that

the mortgaged property or a sufficient part thereof be sold,

and that the proceeds of the sale be dealt with in the

manner provided in sub-rule (1) of Rule 4."

The provisions extracted above clearly indicate that

an application under Order 34 Rule 5 C.P.C. can be filed or

moved by the mortgagor for the deposit of mortgage money at

any time before the confirmation of sale.

Originally, there was no provision under Order 34 Rule

5 C.P.C. enabling the defendant to deposit the mortgage

money into Court at any time before confirmation of sale so

as to save his property from being sold. This provision was

introduced by the Transfer of Property (Amendment) Act (21

of 1929) and it was provided that if, at any time, before

the confirmation of sale made in pursuance of a final

decree, the defendant makes payment into Court of all

amounts due from him under Sub-rule (1) of Rule 4 of Order

34, the Court shall, on an application made by the

defendant, pass a final decree and if such a decree has

already been passed, it would be open to the Court to pass

an order:-

(a) directing the plaintiff-mortgagee to deliver up

the documents referred to in the preliminary decree to the

mortgagor; and, if necessary (b) directing him to transfer

the mortgaged property, as directed in the said decree and,

also, if necessary,

(c) directing the plaintiff-mortgagee to put the

defendant in possession of the property. Order 34 Rule 5

provides the last chance to the mortgagor to save his

property from being passed on to the auction purchaser and

avoid the disturbance of his title ensuring, at the same

time, that mortgage money is paid to the person in whose

favour the property had been mortgaged by depositing the

entire amount in the Court, including the amount, where the

property has been sold, contemplated by Sub-rule (2) of this

Rule. The whole step has to be taken before the

confirmation of sale.

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.

Now, an application to set aside the sale can be filed

under Order 21 Rule 89 C.P.C. while another application for

setting aside the sale on the ground of irregularity or

fraud can also be given under Order 21 Rule 90 C.P.C.

Similarly, if the property has been sold, it would be open

to the purchaser to make an application for setting aside

the sale on the ground that the judgment-debtor had no

saleable interest in the property sold in execution of the

decree.

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Order 21 Rule 92(1) C.P.C. including the Proviso

thereto provides as under:-

"R.92. Sale when shall become absolute or be set

aside.- Where no application is made under Rule 89, Rule 90

or Rule 91, or where such application is made and

disallowed, the Court shall make an order confirming the

sale, and thereupon the sale shall become absolute.

Provided that, where any property is sold in execution

of a decree pending the final disposal of any claim to, or

any objection to the attachment of, such property, the Court

shall not confirm such sale until the final disposal of such

claim or objection."

The above provisions indicate that if an application

is not made either under Rule 89 or Rule 90 or Rule 91 for

setting aside the sale, the Court would confirm the sale.

So also, where such application is made and is disallowed,

the sale would be confirmed. When the "sale" thus becomes

absolute, the Court is required to grant a certificate under

Order 21 Rule 94 to the person in whose favour the sale has

been confirmed specifying therein the details of the

property sold, the name of the purchaser as also the date on

which the sale became absolute. Once these steps have been

taken and a certificate has been issued to the purchaser,

the latter, namely, the purchaser can obtain delivery of

possession of the property sold through the court process by

making an application under Order 21 Rule 95 C.P.C. or if

the property is in possession of the tenant, symbolic

possession would be delivered to him.

Article 180 of the Limitation Act, 1908 which has

since been replaced by the Limitation Act, 1963, provided

for a limitation of three years for making an application

for delivery of possession under Order 21 Rule 95 C.P.C.

In a case which was ultimately decided by the Privy

Council, the question arose as to when the sale shall be

deemed to have become absolute; either on and from the date

on which it was confirmed or on and from the date on which

the appeal, filed against an order rejecting application for

setting aside the sale, was disposed of. The Privy Council

in Chandra Mani Saha and others vs. Anarjan Bibi and

others, AIR 1934 Privy Council 134, held as under:-

"....in construing the meaning of the words "when the

sale becomes absolute" in Art. 180, Limitation Act, regard

must be had not only to the provisions of O.21, R.92(1) of

the Schedule to the Civil Procedure Code, but also to the

other material sections and Orders of the Code, including

those which relate to appeals from Orders made under O.21,

R.92(1). The result is that where there is an appeal from

an order of the Subordinate Judge, disallowing the

application to set aside the sale, the sale will not become

absolute within the meaning of Art.180, Limitation Act,

until the disposal of the appeal, even though the

Subordinate Judge may have confirmed the sale, as he was

bound to do, when he decided to disallow the above-mentioned

application.

Their Lordships, therefore, are of opinion that on the

facts of this case the sales did not become absolute within

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the meaning of Art. 180, Limitation Act, until 17th March

1927, and that the applications for possession of the

properties purchased at the auction sales were not barred by

the Limitation Act."

The Privy Council confirmed the view taken by the

Calcutta High Court in Chhogan Lal Bagri vs. Behari Lal

Saha Ray, AIR 1933 Cal. 311 and overruled the earlier

judgment of that court in Neckbar Sahai vs. Prakash Chandra

Nag Chaudhuri, AIR 1930 Cal. 86. The effect of the Privy

Council decision is that the sale of property, in execution

of decree, does not become absolute merely on the passing of

an order confirming the sale under Order 21 Rule 92 but if

there has been an appeal against an order rejecting an

application for setting aside the sale, made either under

Order 21 Rule 89 or Rules 90 or 91, the sale would not

become absolute till the disposal of that appeal. It was

held that the limitation of three years prescribed under

Article 180 of the Limitation Act, 1908 for making an

application for delivery of possession under Order 21 Rule

95 would run, not from the date on which the sale is

confirmed under Order 21 Rule 92 but from the date on which

the appeals are disposed of.

This question was also considered in a slightly

different situation by the Madras High Court in Kandukuri

Chellamma alias Mangamma & Anr. vs. Shri Ranganilayam

Ramakrishnarao, I.L.R. (1946) Madras 795 = AIR 1946 Madras

337. The question in that case was whether an application

under Section 19 of Madras Act IV of 1938 to scale down the

decree-debt would lie during the pendency of an appeal

against the order refusing to set aside the sale. The

objection was that once the sale has become absolute and has

been confirmed, an application to scale down the decree-debt

would not lie. This was rejected by the High Court which

held that in view of the pendency of the appeal, the

validity of the sale was still in question and until that

question was finally decided by the High Court, the sale

could not be treated to have become absolute particularly as

the appeal had to be regarded as a continuation of the

proceedings initiated in the lower court for setting aside

the sale.

In another Madras decision in S.V. Ramalingam and

others vs. K.E. Rajagopalan and another, 1975 (2) Madras

Law Journal 494, rendered by S.Natarajan, J. (as His

Lordship then was), this principle was reiterated and it was

held that:

"16. The confirmation of a sale subsequent to the

dismissal of a petition under Order 21, rule 90 cannot, in

reality, after the situation when the

mortgagor-judgment-debtor has preferred within time an

appeal against the dismissal of his petition under Order 21,

rule 90. Though the confirmation of the sale does take the

auction-purchaser a step further than before the

confirmation of the sale, the confirmation, by itself, is in

one sense, inchoate. The confirmation gives the sale only

viability but does not render the sale an indefeasible one,

till such time as the appeal preferred by the mortgagor

against the validity of the sale remains undisposed. In

that sense, the confirmation effected the executing Court

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may become final as far as the executing Court is concerned,

but it certainly does not stamp the transaction with

irrevocable finality when alone the rights of parties get

crystallised beyond retracement. Consequently, the appeal

preferred by the judgment-debtor has the effect of rendering

a sale and its confirmation fluidal and nebulous. It,

therefore, follows that the finality of the sale is rendered

at large before the appellate Court in appeal and as such,

the petitioners will be entitled to exercise the right

conferred on them under Order 34, rule 5 to redeem the

mortgage."

In another decision rendered by the Madras High Court

in V.A. Narayana Raja vs. Renganayaki Achi (died) and

others, AIR 1984 Madras 27, it was again reiterated that an

application under Order 34 Rule 5 would be maintainable

during the pendency of the appeal filed by the judgment-

debtor against an order passed by the Executing Court

refusing to set aside the sale effected in execution of the

decree passed in the mortgage suit. It was further held

that although as a result of the confirmation of sale and

the issue of a sale certificate, the auction purchaser got

title to the property and the title of the judgment-debtor

was lost but since the sale was subject to the final result

of the petition, filed by the judgment-debtor under Order 21

Rule 90 C.P.C., the confirmation of sale and the sale

certificate issued thereafter would also be subject to the

result of that petition. Similarly, if an appeal was

pending against an order refusing to set aside the sale, the

whole situation relating to confirmation of sale and

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 decree passed in the mortgage suit.

The entire legal position was reviewed by this Court

in Maganlal & Anr. vs. Jaiswal Industries Neemach & Ors.,

1989 (3) SCR 696, and 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.

Mr. A.T.M. Sampath, learned counsel appearing on

behalf of the appellant has vehemently contended that the

principles set out above would not be applicable to the

present case inasmuch as the appeal was not filed by the

respondents against the order refusing to set aside the sale

but it was filed against an order by which their application

for restoration of another application, namely, the

application for setting aside the sale under Order 21 Rule

90, which was dismissed in default, was rejected. He has

invited our attention to the decision of this Court in

Hukamchand vs. Bansilal & Ors., 1967 (3) SCR 695, in which

it was held that:-

"Though O. XXXIV r. 5(1) 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

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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."

It was further held:-

"A harmonious construction of O. XXXIV r. 5 and O.

XXI r. 92 would make it clear that if the provisions of O.

XXI r. 92(1) apply the sale must be confirmed unless before

the confirmation the mortgagor judgment-debtor has deposited

the amount as permitted by O. XXXIV r. 5."

The first part of the above extract is wholly

inapplicable to the present case as it is nobody's case that

the Court had been deliberately fixing dates after dates to

avoid confirmation of sale or to accommodate the judgment-

debtor. The other part of the extract is relied upon by

both the parties, specially the respondent in support of the

contention that the deposits under Order 34 Rule 5 can be

made and has to be made before the confirmation of sale.

It is true that when the sale was held under the court

auction, the respondent, in the present case, had made an

application (E.A.No. 151/82) for setting aside the sale but

the application was dismissed in default and the sale was

confirmed. Thereafter, the respondent had made an

application (E.A.No. 293/82) for restoration of that

application. They had also made an application (E.A.No.

294/82) for setting aside the confirmation of sale but both

these applications were rejected and it was against these

orders that the respondent had filed appeals (C.M.A.No.

267/83 and C.M.A.No.462/83) in the High Court. It was

during the pendency of these appeals that the respondent had

made an application under Order 34 Rule 5 for deposit of

money. The situation where an appeal is filed directly

against the order dismissing an application under Order 21

Rule 90 is not different from the situation where the appeal

is filed against the order dismissing that application in

default inasmuch as in both the situations, it is the

validity of confirmation of sale, which is involved and is

under possible jeopardy.

An identical situation with which we are faced in this

case was considered by the Madras High Court itself in

Varadarajan vs. Venkatapathy Reddy, (1953) 1 M.L.J. 148,

in which the appeal was filed against an order by which the

application under Order 21 Rule 90 C.P.C. was dismissed in

default. It was held that restoration of the application

under Order 21 Rule 90 C.P.C. would automatically operate

to vacate, or, render ineffective, the earlier order

confirming the sale under Order 21 Rule 92. The High Court

was of the opinion that pendency of an application under

Order 21 Rule 90 C.P.C. would operate as a bar to an order

of confirmation of sale being made under Order 21 Rule 92.

It was further of the view that restoration of an

application under Order 21 Rule 90 C.P.C., which was earlier

dismissed for default, would relegate the parties to the

earlier position and the application for setting aside the

sale would be treated as pending and not disposed of despite

the confirmation of sale in the interregnum.

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In Ramathal vs. Nagarathinammal, (1967) 1 M.L.J.

260, the above view was reiterated and it was held that the

restoration of an application under Order 21 Rule 90, which

was earlier dismissed in default, would render ineffective

the order by which the sale was confirmed.

The Andhra Pradesh High Court in Satyanarayana vs.

Ramamurthi, (1960) 2 An.W.R. 430, held that it is only

where no application under Order 21 Rule 90 is made within

the statutory period or where such an application is made

but is rejected that the Court can exercise its power to

confirm the sale. It further held that the existence of an

application for setting aside the sale would operate as a

bar in making the sale absolute. It also held that during

the pendency of the appeal, no finality attaches to the sale

notwithstanding the confirmation of sale having been made in

the meantime.

Mr. A.T.M. Sampath then pointed out that even after

remand by the High Court, both the applications, namely,

application for restoration as also the application for

setting aside the confirmation of sale were dismissed on

12.12.1983 and the appeals filed against those orders, being

C.M.A. No.19 of 1984 and C.M.A. No.74 of 1984, have also

been dismissed by the impugned judgment with the result that

the objections under Order 21 Rule 90 C.P.C. shall be

treated to have been dismissed on merits, and the

confirmation of sale in favour of the appellant shall be

treated to have been validly done. It is contended that

once the order, by which the sale was confirmed in favour of

the appellant, is found to have been validly passed, the

title in the property passed in favour of the appellant

while the title of the respondent, from that moment, came to

an end. The consequence of this situatiuon, it is further

contended, was that the application under Order 34 Rule 5

C.P.C. for deposit of money was not maintainable and was

liable to be rejected. It was not open to the Executing

Court to have accepted the deposit or to have passed an

order for return of document.

Having given our anxious consideration to these

submissions, we are unable to accept them not only on

equitable considerations but on the merits of the case also.

Adversity of a person is not a boon for others. If a

person in stringent financial conditions had taken the loan

and placed his properties as security therefor, the

situation cannot be exploited by the person who had advanced

the loan. The Court seeks to protect the person affected by

adverse circumstances from being a victim of exploitation.

It is this philosophy which is followed by the Court in

allowing that person to redeem his properties by making the

deposit under Order 34 Rule 5 C.P.C.

We may, at this moment, recapitulate the facts which

have already been given above.

In this case, the sale was held on 29th of April,

1982. The respondent made an application on 21st of June,

1982 for setting aside the sale but this application was

dismissed in default on 18.9.1982. Thereafter, the sale was

confirmed. This compelled the respondent to make an

application for setting aside the confirmation of sale.

They also made an application for restoration of their

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earlier application under Order 21 Rule 90 C.P.C. Both the

applications were made on 12.10.1982 but they were rejected

on 2.4.1983 against which, as pointed out earlier, C.M.A.No.

267/83 and C.M.A.No. 462/83 were filed. In these appeals,

the respondent also moved an application (C.M.P.No.

7710/83) for stay and the High Court passed conditional

order of stay by directing the respondent to deposit a sum

of Rs.25,000/- in the Executing Court on or before

30.6.1983. The respondent deposited the amount on

26.6.1983. While these appeals were pending in the High

Court, the respondent made an application (E.A.No. 226/83)

in the original suit for deposit of money under Order 34

Rule 5.

C.M.A.No. 267/83 was allowed by the High Court on

21.7.1983 by the follwing order:-

"Appellant came forward with a claim that on 12.9.1982

he was afflicted with chicken pox and this was preceded by

fever for two days. Court below held that when no

prescription issued by a doctor or any bill produced

regarding purchase of medicines, this claim cannot be

accepted, though for chicken pox there are no medicines.

Learned counsel for the respondent would state that

appellant herein indulges in protracting the proceedings,

and at every stage he deliberately allows the matter to be

dismissed for default and thereby prevents an early

conclusion of proceedings.

On behalf of appellant, it is pleaded that a bonafide

impression was entertained that by filing such affidavit,

the matter could be successfully concluded, but since the

court below had approached the matter differently by stating

that no other evidence had been adduced, if only it had been

indicated by Court that this matter calls for oral and

documentary evidence to be adduced as well, then appellant

would have adduced the necessary evidence. Therefore, to

enable the appellant to establish the truthfulness of the

claim made, the matter is now remitted, for him to adduce

such evidence as he may choose to give, thereafter for the

court below to pass suitable orders. Accordingly, the

C.M.A. is allowed. No costs. It is open to both parties

to adduce such oral and documentary evidence as they may

consider necessary, and the enquiry is to be completed

positively, on or before 31.8.1983.

It is stated that pursuant to the Orders passed in

C.R.P. No.2251 of 1983, the premises is kept under lock and

key. Since respondent herein is prevented from enjoying the

property in spite of securing an order for confirmation of

sale, the premises will continue to be kept under lock and

key as per the orders passed in the above C.R.P., subject to

an added condition that appellant herein shall deposit by

the 10th of every succeeding month to the credit of the E.P.

a sum of Rs.300/- per month into the court below, failing

which, it will be open to the Court below to proceed to pass

suitable orders.

Sd/- July 21, 1983."

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The trial court, in the meantime, by its order dated

27.7.1983 rejected the respondent's application (E.A.No.

226/83) for permission to deposit the balance of the

mortgage money under Order 34 Rule 5 C.P.C. against which

C.R.P.No. 3473/83 was filed in the High Court. This

Revision Petition as also C.M.A.No. 462/83 were taken up

together and disposed of by a common judgment dated

7.9.1983. The Revision Petition and the appeal both were

allowed. The judgment, inter alia, provided as under:-

"It is stated that in respect of orders passed in

E.A.No.293 of 1982 which was filed to set aside the orders

passed in E.A.No.151 of 1982 and which in turn was filed to

set aside the sale, C.M.A.No.262 of 1983 is filed to this

Court. In the light of the orders already passed in

C.M.A.No.267 of 1983 and the entire matter having been

reopened, both the appeal and the revision petition are

allowed with costs with a direction to the court below to

dispose of the connected E.As. along with E.A.No.294 of

1982, which is being presently enquired into.

It is stated that the court below did not issue chalan

for remittance of Rs.62,563/-Now that the matter has been

reopened, the court below is directed to issue necessary

chalan for the amount to be deposited but without prejudice

to the contentions of parties. If by the date of deposit,

it is open to the Judgment debtor to deposit the high

amount. On production of the Steno copy of this order, the

court below shall proceed further in the matter.

Sd/- 7.9.1983."

A perusal of the portion of the order extracted above

would show that the whole matter was reopened with the

result that the confirmation of sale could not be treated as

final and it was open, even at that stage, to the respondent

to deposit the balance of the mortgage money.

Thereafter, the trial court, by its order dated

16.9.1983, allowed E.A.No. 226/83 and accepted the balance

of the mortgage money amounting to Rs.62,563/-. The trial

court discharged the mortgage. It is contended by the

learned counsel for the respondent that this order has

become final as it was, at no stage, challenged by the

appellant. But the matter does not end here. The trial

court, in the meantime, by its order dated 12.12.1983,

dismissed E.A.Nos. 293/82 and 294/82 against which

C.M.A.No. 19/84 and C.M.A.No.74/84 were filed in the High

Court. It also, by its order dated 16.9.1984, dismissed the

respondent's application (I.A.337/84) for return of

documents under Order 34 Rule 5A C.P.C. Against this order,

C.R.P.No. 4402/85 was filed in the High Court.

C.M.A.No.19/84, C.M.A.No.74/84 and C.R.P.4402/85 were

disposed of by the High Court by a common judgment dated

14.1.1988 by which C.M.A.Nos.19 and 74 of 1984 have been

dismissed while C.R.P.No.4402/85 has been allowed. The

judgment apparently is self-contradictory. While rejecting

C.M.A.Nos.19/84 and 74/84, the High Court allowed

C.R.P.No.4402/85 and has held that the mortgage stood

discharged. The relevant portion of the judgment is

reproduced below:-

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"24. I am afraid that the above said principles are

not applicable to the facts of the present case, since there

is no foundation for holding that the order passed by

Sathiadev, J., was obtained by fraud and the matter is being

raised for the first time before this Court. It is no doubt

true that the conduct of the petitioner in adopting all

sorts of dilatory tactics in delaying the execution of the

decree has to be condemned. But that will not be sufficient

to ignore the order passed by the Court on the basis of the

alleged fraud. Therefore, I find that the order passed by

the lower Court in I.A.No.337 of 1984 in O.S.No.21 of 1978

is not sustainable. As already observed, the order passed

by the lower Court in E.A.No.226 of 1983 has given a

complete discharge of the mortgage decree and consequently

the petitioner is entitled to get return of the documents as

prayed for in I.A.No.337 of 1984.

25. In the result, this revision petition is allowed

and the order of the lower Court is set aside. No costs."

The High Court endorsed the view of the trial court

that on the deposit of the balance amount of the mortgage

money, the mortgage stood discharged. The Trial Court

having also allowed the application of the respondent for

return of documents under Order 34 Rule 5A C.P.C., there was

no occasion for the High Court to have dismissed C.M.A.Nos.

19 and 74/84.

Mr. A.T.M. Sampath has contended that having

dismissed C.M.A.Nos.19 and 74/84, the High Court should not

have allowed C.R.P.No.4402/85 nor should have it allowed the

respondent's application under Order 34 Rule 5A for return

of documents. He is, to that extent, right. But once the

balance of the mortgage money was allowed to be deposited

under Order 34 Rule 5 and the documents were also ordered to

be returned under Rule 5A, with the consequence that the

mortgage was treated as discharged, the obvious conflict can

be removed by allowing both the appeals, namely, C.M.A.

Nos. 19 and 74 of 1984, which are hereby allowed, so as to

bring in harmony the earlier part of the judgment with the

latter part. The objection that the respondent had not

filed any appeal in this Court against that part of the

judgment of the High Court by which C.M.A. Nos. 19 and 74

of 1984 were dismissed, cannot be entertained as the

principles contained in Order 41 Rule 33 can be invoked in

the instant case so as to do complete justice between the

parties. For the reasons stated above, we find no merit in

this appeal which is hereby dismissed with the observation

that the amount deposited by the appellant from time to time

in the High Court or any other Court, in this case, shall be

refunded to him together with all interest accrued thereon.

There shall be no order as to costs.