C.B. Bhargava, J.
1. The facts giving rise to this revision application which was originally registered as Civil Exe. Second Appeal are as follows :--
2. Final decree in a mortgage suit was passed in favour of Anandilal on 28th May, 1952, against the petitioner-judgment debtor. In execution of that decree, the judgment-debtor's house was put to auction and was purchased by the auction purchaser M/s. Jankilal Gorilal Mahajan of Rampura, Kotah, through Seth Puranmal of Kotah on 18th March, 1953, for Rs. 6601. On 26th March, 1953, the judgment-debtor moved the Court under Order 21, Rule 90, Civil P. C., to set aside the said sale on the ground of material irregularities in conducting the sale. The executing Court held an inquiry in regard to the above application and it was posted for arguments on 20th February, 1954. On that date the judgment-debtor submitted an application (Ex. 2) expressing his willingness to deposit a sum equal to 5% of the purchase money for payment to the purchaser as also full amount of the decree to the decree-holder. He sought the permission of the Court to make the aforesaid payments and prayed that orders for setting aside the sale be passed. Because of this application, arguments were not heard on the application under Order XXI, Rule 90, and the Court, in the presence of the advocates for the parties recorded an order (Ex. 3) directing the judgment-debtor to deposit the decretal amount as also 5% of the purchase money on 24th February, 1954. Shri Sheetal Prasad, Advocate, was present on behalf of the auction-purchaser on the aforesaid date and from Ex. 3 it appears that he did not take any objection to the above order. On 24th February, 1954, when the matter came up again before the Court, Shri Sheetal Prasad, Advocate for the auction-purchaser, raised no objection to the judgment-debtor's petition except as to costs for the previous, i.e., under Order 20, Rule 90, Civil P. C. The judgment-debtor sought further time to deposit the money on 4th March, 1954, which the Court granted, vide Ex. I on 4th March 1954. Judgment-debtor again sought time to deposit the amounts to which the decree-holder as well as the advocate for the auction-purchaser had no objection and the Court directed the judgment-debtor to deposit Rs. 412/9/- on account of stamp duty on the purchase money i.e., Rs. 6601, and 5% for compensation amount amounting to Rs. 330, with Rs. 63/2/3 as costs of the application under Order XXI, Rule 90, vide Ex. 6. The case was adjourned to 8th March 1954. On 9th March, 1954, Shri Sheetal Prasad, Advocate for the auction-purchaser, declined to accept the amount of compensation with costs tendered to him by the judgment-debtor. As the Court time had become almost over, the case was adjourned to 11th March, 1954, vide Ex. 5. On this latter date, court-fee stamps of Rs. 412/9, and Rs. 330 plus Rs. 63-2-3, for compensation to be paid to the auction-purchaser, were deposited in the Court. On this, the Court dismissed the judgment-debtor's application under Order XXI, Rule 90 but allowed the other application dated 20th February, 1954, purporting to act under Order XXI, Rule 89, Civil P. C., and directed the sale to be set aside, vide Ex. 4. It appears from Ex. 4 that when this order was passed no one was present on behalf of the auction purchaser. It is also not clear from the order how the decree was satisfied and it is not the case of the judgment-debtor that he had deposited the decretal amount in the Court on that date. His case, however, is that he had made full satisfication of the decree out of Court and the decree-holder had also certified full satisfaction of the decree in the Court and an order to that effect was recorded in the execution file.
3. Against this order, auction-purchaser preferred an appeal to this Court, being civil execution first appeal No. 10 of 1954, which was disposed of an 20th April, 1959. It was contended on behalf of the auction purchaser in that appeal that no action could have been taken by the executing Court on the application of the judgment, debtor made under Order 21, Rule 89, Civil P. C., on 20th February, 1954, as it was presented beyond the prescribed period of limitation. The learned Chief Justice, who heard that appeal accepted the above contention, but on behalf of the judgment-debtor it was urged that the application dated 20th February, 1954, was made in the proceedings under Order 21, Rule 90, and no independent application was made under Order 21, Rule 89. It was urged that the aforesaid deposits were made with the consent of the parties and no objection was raised on behalf of the auction purchaser to set aside the sale if the judgment-debtor made such deposit. As the order of the Court below was not very clear as to what the position actually was whether there was any separate proceeding under Order 21, Rule 89, Civil P. C., or the application for making the deposit in the proceedings was made under Order 21, Rule 89, Civil P. C., itself and that it was in the nature of settlement by common consent of the parties that the deposit was allowed to be made, the learned Chief Justice sent the case back to the executing Court for a clear finding on the point mentioned above holding that if the order was passed by common consent of the parties, then the order dated March 11, 1954, passed by the learned Civil Judge will stand, otherwise the order will have to be set aside and the sale confirmed. After the order of remand, the judgment-debtor and the auction purchaser examined their respective advocates namely, Shri Tejmal Gupta and Shri Sheetal Prasad. The statement of Shri Rabi Bhushan, Clerk, who had written Exs. 1 to 6 on the Court's record, was also recorded. The learned Civil Judge, after considering the material on the record, came to the conclusion that the judgment-debtor was directed to make the deposit with the consent of the parties and no independent application under Order 21, Rule 89 was made. In view of this, he ordered the sale to be set aside.
4. Against this order the auction purchaser went in appeal to the learned District Judge, Kotah, who further recorded the statement of Shri R. N. Upadhyaya, the then Civil Judge, Kotah. The learned District Judge came to the finding that the conduct of the Advocate for the auction purchaser in not raising any objection to deposit being made by the judgment-debtor did not amount to his consent. The word 'consent' has been scrupulously avoided in all the orders and the fact that the order dated 11th March, 1954, was immediately challenged by the auction-purchaser in appeal pointed out that it was not a consent order. He, therefore accepted the appeal and confirmed the sale. It is against this order that the judgment-debtor has come to this Court.
5. At the time of the admission of this appeal on May 4, 1965, the Court recorded an order that 'the question whether the auction purchaser consented to accept the purchase price with 5% solatium is a question of fact which cannot be agitated in second appeal. The appeal is, however, admitted on the grounds (e) and (f) of para 5', which are as follows:--
'(e) because in any event the learned District Judge could not have legally confirmed the sale without hearing the parties on merits on the application under Order 21, Rule 90, Civil P. C., and without disposing of the same.
(f) because the order of confirmation made by the learned District Judge could not have been legally passed because as an inevitable consequence of his finding the application must be deemed to be still pending.'
However, it is admitted by both parties that the above order cannot stand in the way of the petitioner addressing the Court on other points as well even though the revision was admitted on a limited question, vide Bhagirath v. Samdoo Khan, ILR (1952) Raj 1012.
6. Before the matter came up for final hearing the judgment-debtor submitted an application on 22nd September, 1967, and in view of the contention which is now raised on behalf of the judgment-debtor the least that can be said for this application is that it was very carelessly drafted. It stated in para. 1 of the application that on '9th March, 1954, the judgment-debtor brought the whole amount in Court but the learned Advocate for the decree-holder did not accept this and since there was no time left for depositing it in the Court, the learned Judge ordered that the amount be deposited on 11-3-54. The judgment-debtor as per Court's order deposited the entire amount on 11-3-1954 in Court and on the amount having been so deposited the learned Judge accepted the application of the judgment-debtor dated 20-2-54.' It is stated in Para. 5 of the application that 'in this case the sale is not confirmed even to this date and after having deposited the decretal amount the costs and 5% of the purchase money on 11-3-54 the judgment-debtor was, as a matter of right, entitled to have the sale set aside and redeem the property under Order 34, Rule 5, Civil P. C., and the learned executing Court only passed the right order, which could be passed under the circumstances of the case.' It is then stated that the judgment-debtor's application dated 20th February, 1954, was in fact an application under Order 34, Rule 5, Civil P. C., and as the judgment-debtor had deposited the decretal amount and 5% of the purchase money in the Court as laid down in Order 34, Rule 5, the sale was rightly set aside. When the matter came up before the Court on 2nd February, 1968, the above application was opposed by the learned counsel for the auction-purchaser and the learned counsel for the judgment-debtor could not show from record if the appellant had deposited the decretal amount in Court before confirmation of the sale. The Court, therefore, kept the application pending to be dealt with when the matter came up for hearing,
7. At the hearing, Shri H. P. Gupta, learned counsel for the judgment-debtor urged that the satisfaction of the decree was made out of Court and the decretal amount was not deposited in the- Court as stated in the application dated 20th September, 1967. In this connection Mr. Gupta pointed out that the receipt filed by the decree-holder for full satisfaction of the decree on 11th March, 1954, before the executing Court has been removed from the file by some one. Not only that but one page of the order sheet or the Execution Case No. 240 of 1952 on which the Court had recorded the order consigning the execution file to record due to full satisfaction of the decree has been removed. Attempt has also been made to draw ink lines on the entry of this receipt at serial No. 24 of the fly list.
8. Learned counsel says that though the original receipt filed by the decree-holder and the order passed by the Court in the execution file have been removed, there is ample material on the record to show that the decree had been fully satisfied on 11th March, 1954, when order for setting aside sale was passed. He has drawn my attention to the following remarks of the learned District Judge in the order under revision :
'An order was also recorded in the main execution file in which it was written that the order has been announced in the objection petition. The application of the judgment-debtor under Order 21, Rule 89 has been accepted and the sale set aside and Rs. 395/2/3 have been deposited for paying to the purchaser. Similarly, Rs. 412/9 have been deposited for sale fees and the decree-holder has also filed receipt for full satisfaction and that the execution be dismissed in full satisfaction.' which shows that the page of the order sheet containing the above order was intact when judgment was written by the District Judge. Further he has referred to the previous judgment of this Court dated 20-4-1959 where on behalf of the auction purchaser it was urged 'that the decretal dues having already been satisfied the decree-holder had no further interest in the matter and no application for substitution was necessary but it is only by way of precaution that the appellant filed the application for substitution of the heirs of the decree-holder.'
9. From the above, learned counsel con-tends it is established beyond doubt that the decree-holder had certified full satisfaction of the decree and had also submitted a receipt in the Court to the same effect on 11-3-1954. Learned counsel further contended that if the Court does not feel convinced about the existence of the receipt given by the decree-holder regarding the full satisfaction of the decree on the basis of what has been already urged, the Court may in the interest of justice reconstruct the record under its inherent powers. Reliance is placed on Marakkarutti v. Veeran Kutty, AIR 1923 Mad 647, Katam Achutharamayya v. Irriki Nagabhushanam, ILR (1957) Andh Pra 739 and Wamanrao v. Majbutsingh, AIR 1955 NUC (Madh Bha) 3823.
10. It is obvious that though these proceedings are pending since 1954, the judgment-debtor did not raise the point that the application dated 20-2-1954, be regarded as having been made under Order 34, Rule 5. Even on 22nd September, 1967, the stand taken was that the whole amount was deposited in the Court. It was not said there, that the decree had been fully satisfied out of Court and the decree-holder had certified that satisfaction in the Court on 11-3-1954 after submitting a receipt to that effect. Another unfortunate circumstance against the judgment-debtor now is that the receipt alleged to have been filed by the judgment-debtor is not on the record. However, learned counsel's contention that the original receipt and a page of the order sheet containing the order of the executing Court dated 11-3-1954, have been removed from the execution file and attempt has been made to draw ink lines on the entry of the receipt in the fly list is not without substance. A perusal of the execution file clearly shows that the above mentioned documents have been removed by some one from the file. The torn remnants of the documents are still there under the stitches. Similarly, on the fly list lines with ink have been drawn on entry No. 24. When these facts were brought to the notice of the Court the Registrar was asked to keep the file in a sealed cover. Removal of documents from the Court record while it is in the custody of the Court is a very serious matter and needs thorough investigation for which a separate order would be passed. But for the purposes of these proceedings even if it be assumed that the decree-holder had certified full satisfaction of the decree in the Court on 11-3-1954, the point for consideration is whether it is open to the mortgagor judgment debtor to satisfy the decree out of Court after the sale of the property upon a final decree but before the confirmation of sale to claim the benefit of Order 34, Rule 5, which is set out below:
'(1) Where, on or before the day fixed or at any time before the confirmation of a 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,
(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 percent, of the amount of the purchase-money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment 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.'
11. The above rule was substituted for old Rule 5 by the Transfer of Property (Amendment) Supplementary Act, 1929, and excepting certain matters corresponds with Section 89 of the Transfer of Property Act which was repealed by the Civil Procedure Code, 1908 (Act No. V of 1903). This rule confers a right on the judgment debtor under a mortgage decree to pay the amount of the decree at any time before the sale is confirmed whether the application is made within 30 days or not as required by Order 21, Rule 89 and recognises the rule that a decree for sale does not extinguish the equity of redemption until the sale is confirmed.
12. Under Section 89 of the Transfer of Property Act the defendant could pay the amount to the plaintiff or into Court. Under Sub-rule (1) of the present rule the payment is to be made into Court. In some cases relating to the stage between the passing of preliminary decree and the final decree, it was held that Order 34, Rule 5 recognised only one method of payment i. e., payment into Court and any adjustment of the decree made out of Court cannot be availed of by the judgment debtor. But this view was overruled by the their Lordships of the Privy Council in Madan Theatres, Ltd. v. Dinshaw and Co., Bankers Ltd., AIR 1945 PC 152 and it was held that:
'The mortgage suit continues until the final decree is passed and there is no limit for recording the agreement arrived at as there is under Order 21, Rule 2. A decree-holder need not of course agree to any adjustment or accept payment otherwise than into Court but it is open to the debtor to allege and prove that an adjustment has taken place or payment in whole or in part has been made and received. Therefore, the Judge should satisfy himself as to whether any adjustment has been arrived at or payment made, and should follow this enquiry by an appropriate decree under which a finding of full satisfaction to a diminution of the indebtedness whereas a finding that there had been no adjustment or satisfaction would be followed by a final decree for sale.'
Their Lordships further pointed out that there was no qualification with Order 23, Rule 3, nor any grounds for limiting its application and it was therefore, held that until a final decree is passed in a mortgage suit it was open to a debtor to allege and prove that an adjustment has taken place or payment in whole or in part has been made and received. Their Lordships however, did not touch the question whether the above provision (Order 34, Rule 5), if stood alone, prohibited the compromise of the preliminary decree in the mortgage suit by payment of adjustment in someway other than directed by the preliminary decree. The above decision, therefore, is of no avail to the judgment-debtor because in the present case the satisfaction of the decree is alleged to have been made after the final decree and the sale under it. Now it is not a matter between the judgment-debtor and the decree-holder alone but the rights of a third person who has purchased the property have also become involved. Therefore, the point to be considered is whether the rights of an auction purchaser though they may be inchoate till then can be defeated by the judgment-debtor by making any payment or adjustment out or Court. This question came up for consideration in Bibi Sharofan v. Mahomed Hahibuddin, (1911) 10 Ind Cas 148 (Cal). In that case in a mortgage decree which was made absolute properties were sold and purchased by one Mahomed Habib-ud-Din on 20th September, 1909. On 9th October, 1909, the judgment-debtor applied for leave to deposit the decretal amount which was granted. On 15th October. 1909, he made an application under Order 21, Rule 90 for setting aside the sale on the ground of fraud and material irregularity in the proclamation and conduct of sale. During the pendency of this proceeding, the decree-holder intimated to the Court his willingness to accept the decretal amount and to allow the sale to be set aside if the judgment-debt was satisfied. Thereupon it was alleged that the judgment-debtor had paid the sum to the decree-holder who certified payment to the Court and the subordinate Judge set aside the sale on the ground that as the decree-holder had consented to its reversal, it could not stand good. The auction purchaser then appealed and the District Judge reversed the order of the Court below. The judgment-debtor then went in revision to the Calcutta High Court and it was held that:
'The auction purchaser was not bound by the compromise between the decree-holder and the judgment-debtor, and that the sale could not be set aside on such coin-promise.'
Caspersz J., observed:
'Such a compromise, however, cannot be allowed to defeat the interest of the auction purchaser and the intention of the Code which allows a deposit to set aside the sale only if the money is paid in a particular way and within 30 days.'
Although the learned Judge made the above observation in regard to the language of Order 21, Rule 89, but the language of Order 34, Rule 5 is substantially similar to that of Order 21, Rule 89. The above decision was approved by their Lordships of the Privy Council in Nanhelal v. Umrao Singh, AIR 1931 PC 33. There also it was held that:--
'Order 21, Rule 2, which provides for certification of an adjustment come to out of Court clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no interests have come into being. When once a sale has been effected, a third party's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. Therefore after a sale is duly held, the Court cannot refuse to confirm the sale on the ground that the decree-holder and judgment-debtor say that the decree has been satisfied out of Court.'
In this case also it is admitted by the learned counsel that provisions of Order 23, Rule 3 are not applicable because a final decree has already been passed and the suit has come to an end. But his contention is that if the Judgment-debtor satisfied the decree out o Court before the confirmation of an execution sale, it cannot be confirmed and the executing Court has ample power to take notice of the satisfaction of the decree under Order 21, Rule 2 when the decree-holder certified that satisfaction. Similar argument was raised before their Lordships of the Privy Council in the case mentioned above and their Lordships negatived the contention.
In V. Madhavan Nayanar v. Parameshwara Ayyar, AIR 1948 Mad 373, which is a Division Bench judgment it was held that:
'The language of Rule 5 of Order 34 is imperative and the requirement that the amount due to the decree-holder must be deposited in Court is obligatory and must be strictly complied with. A payment or adjustment out or Court would not be compliance with the strict requirements of this rule.'
It was further held relying upon the aforesaid decisions of the Privy Council that;
'Order 21, Rule 2 is not applicable after a sale of the mortgaged property in execution.'
The above decisions therefore, definitely show that:
1. Order 21, Rule 2 does not apply to a case of payment or adjustment out of Court after the property has been sold in execution of a mortgage decree.
2. The language of Order 34, Rule 5, is imperative and the judgment-debtor cannot take advantage of the above provision unless the payment is made in the Court.
13. My conclusion therefore is that the Judgment-debtor cannot take advantage of the provisions of Order 34, Rule 5 by relying upon satisfaction of the decree out of Court. This contention, therefore, fails.
14. It was next contended by the learned counsel that the judgment of the learned District Judge cannot be regarded as a pro- per judgment in the eye of law because he as failed to consider the statement of Shri Ravendra Nath Upadhyaya the then Civil Judge who was examined at the instance of the judgment-debtor. It is further pointed out that the learned District Judge arrived at his finding on a flimsy ground viz., that the word consent' had not been written in any of the orders i. e., Exs. 1 to 3. On the other hand learned counsel for the auction purchaser has strenuously urged that the finding given by the learned District Judge is a finding of fact and it cannot be challenged in revision.
15. It is evident that the High Court by its order dated 30th August, 1959, directed the Court below to record a clear finding whether there was any separate proceeding under Order 21, Rule 89 of the Civil Procedure Code started by the judgment-debtor or the petition for making the deposit was filed in the proceeding under Order 21, Rule 90 itself and that it was in the nature of a settlement by common consent of the parties that the deposit was allowed to be made. The learned District Judge has found that the order for the deposit was not made with the consent of the parties. It was contended before the learned District Judge that the final order dated 11th March, 1954, itself shows that the application under Order 21, Rule 89 was allowed and the other one under Order 21, Rule 90 was dismissed. It was also pointed out to the learned District Judge that the order for making the deposit emanated from the Court itself and was not the result of any settlement between the parties and that is why the fact that the parties had come to a settlement nowhere appeared in the orders. Further the fact that the auction purchaser had challenged the order in appeal showed that he had never given his consent to the deposits being made. The learned District Judge taking all the above facts into consideration as also the other evidence produced by the parties came to the finding that the deposit had not been made as a result of any settlement between the parties. It is true that the learned District Judge did not discuss the statement of Shri R. N. Upadhyaya but his evidence is mainly based upon what is contained in Exts. 1 to 6 and naturally when he gave his statement he could not have recollected the events which took place in the year 1954. Therefore, the judgment of the learned District Judge is not vitiated on this ground. It is well settled that 'under Section 115 of the Civil Procedure Code High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right therein is confined to jurisdiction and jurisdiction alone. (See Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698.) In Pandurang Dhondi Chougule y. Maruti Hari Jadhav, AIR 1966 SC 153, it was held that:
'The High Court cannot, while exercising its jurisdiction under Section 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.'
The finding arrived at by the learned District Judge is purely a finding of fact and this Court has, therefore, no power to review the evidence in its revisional jurisdiction. That being so, the contention of the learned counsel fails.
16. The last contention of the learned counsel is that in any event the sale could not have been confirmed without disposing of the judgment-debtor's application under Order 21, Rule 90, because the said application was dismissed due to the deposits made by him.
17. On behalf of the non-petitioners it has been urged that the judgment-debtor cannot be allowed to take the above objection for the first time in this Court when he failed to raise the objection in the lower Court or even before when the matter had come before the High Court in connection with the appeal preferred by the auction-purchaser. It is also pointed out that if the question regarding the validity of sale is re-opened again it will cause great hardship to the auction-purchaser because after the sale had been confirmed, the auction-purchaser also took possession of the property sold.
18. It is obvious that when the executing Court had set aside the sale due to the deposit being made by the judgment-debtor, he could have no grievance against that order. But this objection could have been taken before the High Court when the case was remanded. The order of remand is quite clear on this point where it says that 'if it is held that the order was passed by common consent of parties, then the order dated 11th March, 1954, passed by the learned Civil Judge, will stand, otherwise, the order will have to be set aside and the sale confirmed'. In the face of this order the Court below had no option but to confirm the sale, having found that the order of 11th March, 1954, was not made by common consent of parties. The petitioner, therefore, cannot be permitted to raise this question now. Even otherwise, it is not open to the judgment-debtor to pursue his remedy under Order 21, Rule 89 and Rule 90 simultaneously. Application under Order 21, Rule 90, has to be withdrawn on making an application under Order 21, Rule 89.
19. The revision application has no force and is hereby dismissed. In the circumstances of the case the parties shall bear their own costs.