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M. Sevugan Chettiar and anr. Vs. V.A. Narayana Raja and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Judge
Reported inAIR1984Mad334
ActsCode of Civil Procedure (CPC), 1908 - Sections 65 - Order 21, Rule 92 - Order 34, Rule 5; Indian Limitation Act, 1908 - Schedule - Article 180; Indian Limitation (Amendment) Act, 1963 - Schedule - Article 134
AppellantM. Sevugan Chettiar and anr.
RespondentV.A. Narayana Raja and ors.
Appellant AdvocateAdv. General, ;A.R. Lakshman and ;K. Govindarajan, Advs.
Respondent AdvocateAdv. General for ;M.S. Rajasekar, ;D. Jagannathan, ;D. Raju, ;M. Venkatachalapathi and ;M. Srinivasan, Advs.
Cases ReferredMadhavan Nayanar v. Paramesswara
Excerpt:
.....to have vested in purchaser from time of property being sold and not from time when sale became absolute - application filed to set aside sale dismissed - appeal preferred against order of dismissal - sale has not reached finality - once order of first court is appealed against lis continues - appeal is nothing but continuation of original lis - order of first court left suspended on filing of appeal and no finality and conclusiveness could be annexed to such order. - - 91, or where such application is made and disallowed, the court shall make an order confirming the safe, and thereupon the sale shall become absolute. it is a well settled principle that once the order of, the first court is appealed against, the lis continues and the controversy, the subject matter of the lis,..........court gets ripped open by the filing of the appeal to get a fresh mould as per the decision in the appeal. appeal is nothing but the continuation of the original lis and the order of the first court is left suspended on the filing of the appeal and no finality and conclusiveness could be annexed to such an order with regard to matters decided thereby. the lis is being reheard and the parties are 'enabled to plead and prove their case once again. if the above, legal proposition, is understood, then, there, is no difficulty in ourselves holding that if the confirmation which depended upon the disallowance of the application to set aside the sale is left suspended, o. xxxiv r. 5 can definitely be availed of by the judgment debtor at the stage of the pendency- of the appeal. the preceding.....
Judgment:

Nainar Sundaram, J.

1. In these Letters Patent Appeals, the question which hits arisen for consideration relates to the scope of the contingency under which and the conditions on satisfaction of which the powers of court to be exercised under O. XXXIV R. 5 of the Civil P. C. hereinafter referred to as the Code. To assess the question raised and to express an opinion thereon. it has become necessary to trace the facts of the case. We are obliged to refer to the parties as they stood arrayed in CMP 16300 of 1982 in CMA 532 of : AIR1984Mad27 against the orders in which these Letters Patent Appeals has been preferred, which array is more or less similar in the civil miscellaneous appeal itself. In 1903 two items of properties were the subject matter of mortgage by Narayana Raja the petitioner to and in favour of one Meyyappa Chettiar. who is no more. Ranganayaki Achi the first respondent, who died subsequently, and Sevugan Chettiar, the second respondent. were countenanced as the legal representatives of Meyvappa Chettiar. On the death of Ranganavaki Achi herself. Sevugan Chettiar, the second respondent anti Ramiah chettiar, the seventh respondent. have been countenanced as her legal representatives. Tile suit O. S. 106 of 1965 oil the file of the Subordinate Judge Madurai, was filed in enforcement of the mortgage by the original mortgagee and preliminary decree was passed in the suit on 29-6-1966. A final decree ensued on 28-2-1967. Execution was prosecuted by the original mortgagee decree-holder in E.P. 110 of 1967 for the sale of tile properties. The decree-holder seemed to have died subsequently and the execution was prosecuted for his legal representatives . The execution petition was posted for disposal on 22-12-1967. However, it was advanced on 1- 12-1967 and posted to 2-12-1967, when the executing court directed the sale of the properties to be held on 22-1-1968. The sale was actually held on 23-1-1968 and item No. I was sold in favour of Natarajan Chettiar, the fifth respondent and item No. 2 of the properties was sold in favour of Ramaswarni Chettiar, the sixth respondent..The petitioner, the defendant judgment-debtor, filed E. A. 157 of 1969 under O. XXI Rule 90 of the Code for setting aside the court auction sale. Despite the filing of the application to set aside the sale, the executing Court confirmed the sale and possession was taken. Ultimately E. A. 157 of 1969 was dismissed on 16-8-1976. As against the decision in E. A. 157 of 1969. the petitioner preferred C. M. A. .532 of 1977. Earlier. tile civil miscellaneous appeal was allowed by this court on 5-3-1981 and the sale in, favour of respondents 5 and 6 was set aside. S. N. S. & Co. Dindigul the third respondent who is stated to be a puisne mortgagee and the legal representatives of tile fifth respondent, who seemed to have died subsequently, filed petitions to set aside the order of this court in CMA 532 of 1977. This Court allowed these petitions and as a result CMA 532 of 1977 has been restored to be heard in respect of the interest of the third respondent and the legal representatives of tile fifth respondent, At this stage, the petitioner has filed the petition C. M. P. 16308 of 1982 under 0. XXXIV R. 5 of the Code seeking permission to deposit the amounts due under the decree. The petition was opposed by the third respondent and the legal representatives of the fifth respondent on two grounds. One is the sale was confirmed long prior to the filing of the application and hence,O.XXXIV R. 5 of the Code cannot be invoked, and the second is, there has been no deposit into court of the amounts due under the decree within the meaning of O. XXXIV R. 5 of the Code, and the petitioner only sought a direction to deposit and this would not suffice the purpose of O. XXXIV R. 5. Ramanujam. J. who heard the petition, repelled both the above contentions allowed the petition and permit(ed the petitioner to deposit the amount before the trial Court and the trial Court was directed to go into the question of the sufficiency or otherwise of the, amounts deposited for the purpose of redemption. As stated above. these Letters Patent appeals are directed against the orders of the learned Judge in C. M. P. 16308 of 1982, and the appellants are the various respondents in C. M. P. 16308 of 1982.

2. Before us, Mr. R. Krishnamurthi, learned 'Advocate-General, advancing arguments in common for all the appellants, urged the very same contentions that were put forth before the learned single Judge. Order XXXIV R. 5 enables the judgment-debtor to make payment into court of all the amounts due from him under tile preliminary decree in a suit for sale on or before the day fixed obviously under R. 4 of O. XXXIV or at any time before the confirmation of the sale after a final decree is passed under Sub-r.(3) of R. 5 of O. XXXIV. In the present case the final decree had been passed on 28-2-1907, as narrated when recapitulating the facts of the case, Hence, the question is whether the petitioner Could be enabled to make tile deposit on the ground that Such deposit is 'before the confirmation of the sale'. We feel obliged to extract O. XXXIV R. 5 as follows, with the amendment in this State, so far as sub-r(3) is concerned, so that the relevant provision may stand adumbrated in this judgment itself :

'Final decree in suit for sale --

( 1) Where, oil or before the (lay fixed for al any time before the confirmation of a sale made in pursuance of a final decree passed under sub-r. (3) of this Rule, the defendant makes payment into court of all amounts due from him under sub-r. (1) of R, 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-r. (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

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-r. (1) has not been made, the court shall, on application made by the plaintiff in this behalf and after notice to, all the parties, 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 in the manner provided in sub-r. (1),of R. 4.' -

3. 0. XXI R. 92 speaks about as to when the sale will become absolute and it reads as follows -

'Sale when.to become absolute or be set aside. - (1) Where an application is made under R. 89, R. 90 or R. 91, or where such application is made and disallowed, the court shall make an order confirming the safe, and thereupon the sale shall become absolute.'

4. Section 65 is also relevant when it speaks about purchaser's title and it reads as follows -

'Purchaser's title :- Where immovable property, is sold 'in execution of a decree and such sale has become, absolute, the property shall be deemed to have vested in the purchaser from the time When the, property is sold and not from the time .when the sale becomes absolute'.

There ought t6 be an order confirming the sale. Such an order confirming the sale could be passed only where an application under R. 89, R. 90 or R. 91, is made and disallowed. Only on confirmation, the sale shall become absolute. Once the sale becomes absolute, of course, the property shall be deemed to have vested in the purchaser from the time when the property was sold and not from the time when the sale became absolute. Where an application, to set aside the sale bas-been filed and it gets dismissed by the first court and an appeal has been preferred against the order of dismissal, on the application of the first principle that the appeal is a continuation of the original lis and no finality could be attached to the order of the first court it has to be held that the disallowance of the application to set aside the sale has not reached the finality, so as to give the same finality to the confirmation which, is in fact, has ensued on orders being passed by the first court disallowing the, application to set aside the sale. It is a well settled principle that once the order of, the first court is appealed against, the lis continues and the controversy, the subject matter of the lis, becomes once again sub judice and the appellate Court as the appropriate forum, has seisin of the entire lis. The mould of the order passed by the first court gets ripped open by the filing of the appeal to get a fresh mould as per the decision in the appeal. Appeal is nothing but the continuation of the original lis and the order of the first court is left suspended on the filing of the appeal and no finality and conclusiveness could be annexed to such an order with regard to matters decided thereby. The lis is being reheard and the parties are 'enabled to plead and prove their case once again. If the above, legal proposition, is understood, then, there, is no difficulty in ourselves holding that if the confirmation which depended upon the disallowance of the application to set aside the sale is left suspended, O. XXXIV R. 5 can definitely be availed of by the judgment debtor at the stage of the pendency- of the appeal. The preceding judicial pronouncements of this court support this view of ours without leaving scope for a second view.

5. In Venkata Narasimhan v. Nagoji Rao (1946) 59 MLW 139 : AIR 1946 Mad 344, a Bench of this Court, consisting of Horwill and Koman JJ. dealt with a case where the very application under 0. XXXIV R. 5 was dismissed for default and thereafter the sale was confirmed. That application was restored and the Bench countenanced that the effect of setting aside the order of dismissal for default operated automatically to set aside the order of confirmation of the sale.

6. In Varadarajan v. Venkatapathl Reddi, (1953) 66 MLW 13 : AIR 1953 Mad 587, a Bench of this Court, consisting of Satyanarayana Rao and Krishnaswami Nayudu JJ. held that on restoration of an application to set aside the sale, dismissed for default, the order of confirmation already made became ineffective and- got automatically vacated and could be considered to be null and void. The Bench pointed out that the order of confirmation is a dependent order and the restoration, therefore, by the appellate court, on a petition under 0. XXI R. 90 would make the confirmation ineffective.

7. In Satyanarayana v. Ramamurthi (1960) 2 AWR 430. Chandra Reddy C. J. and Ananthanarayana Ayyar J. pointed out that the confirmation of sale is dependent on the result of the application under any of the rules contemplated by R. 92 of O. XXI. The Bench further held that during the pendency of an appeal against an order dismissing an application for setting aside the sale, no finality attached to the sale.

8. In Valliammal v. Subramania Iyer. (1964) 1 M U 275, Ramachandra Iyer C. J. held as follows : -

'It is clear from the terms of O. 34, R. 5 of the Civil Procedure Code, that so long as the sale had not been confirmed, it will be open to the mortgagors to deposit the amount due together with the solatium prescribed therein and avoid the sale. Notwithstanding the fact that the mortgagors petition for setting aside the sale had been dismissed by the executing Court, the matter was at large before the appellate court in appeal. There was therefore no final order of confirmation of sale before the appeal was disposed of. During the pendency of such appeal the mortgagors could deposit the amount due in the appellate court and avoid the sale.'

9. In Ramathal v. Nagarathnammal, 1967 11 MLJ 260, Ananthanarayanan C. J. and Ramakrishnan J. were concerned with a case where an application under 0. XXI R. 90, was dismissed for default and the sale was confirmed and possession was taken. However, on appeal, the application under 0. XXI R. 90 was restored and the Bench held after referring to the earlier pronouncements of this court, that the confirmation stood automatically vacated.

10. Learned Advocate General wanted to rely on the decision of the Supreme Court in Hukamchand v. Bansilal, : [1967]3SCR695 . In our view, neither facts dealt with by the Supreme Court nor the principles recognised in that decision support the case of the appellants. There was an application under Or. XXI R. 90 and the sale could not be confirmed till that application was disposed of. On a particular date, by consent of parties, the judgment debtor, on a particular time being given to deposit the decretal amount along with the auction purchaser's commission, withdrew the application under O. XXI R. 90 and the same was dismissed accordingly. The judgment debtors sought extension of time and the question arose as to whether the court had the power to grant time to deposit the money in the stated circumstances of the case. The Supreme Court opined that the Court had no power to extend the time and O. XXXIV R. 5 cannot be availed of. The question of the present nature as to when the confirmation of sale becomes final never arose before the Supreme Court in that case.

11. S. Natarajan J. in Ramalingam v. Rajagopalan, (1975) 2 M U 494, after adverting to very many judicial precedents; held that on an appeal being preferred against the order dismissing the application to set aside the sale, the sale and its confirmation are left fluidal and nebulous and the finality of the sale was rendered at large and as such, there could be a resort to O. XXXIV R. 5 at the appellate stage. Ratnam J. in A. N. Lakshminarayana v. State Bank of India C. M.A. 186 of 1978 judgment dt. 1-6-1982, has also taken a similar view.

12. The principles discussed by us above naturally lead us to the conclusion that until the confirmation of the sale becomes a finality in the eye of law, the provisions of O. XXXIV R. 5 can be availed of by the judgment debtor and it is not possible to give a narrow and a literal meaning to the expression 'before the confirmation of a sale' occurring in O. XXXIV R; 5, as-meaning only the order confirming the sale passed by the first court since, an appeal being filed, that order is left at large.

13. There is another angle from, which the matter could be viewed and which, in fact, Mr. M. Srinivasan. learned counsel appearing for the petitioner in CMP 16308 of 1982, who is the contesting respondent in all these appeals, would advance and press forth. and that is with reference to the provisions of the Limitation Act. Art. 134 of the Limitation Act 1963, prescribes a period of one year for an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree, from the time when the sale becomes absolute. Art. 180 of the Indian Limitation Act, 1908, though prescribed a period of three years, also stated that time would run from the date when the sale becomes absolute'. As to when the sale would become absolute, has got to be gleaned only from 0. XXI R; 92 of the Code. As per that provision, as stated above. sale will become. absolute only on the court making an order confirming it. There are judicial precedents commenting on the implications from this angle and they are also useful to decide the question that has arisen in the present appeals.

14. In Chandramani v. Smt. Anarjan Bibi : (1934)36BOMLR717 : () the Privy Council observed as follows -

'Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words 'when the sale becomes absolute' in Art. 180 of the Indian Limitation Act, regard must be had not only to the provisions of 0. XXI R. 92(1) of the Schedule to the Civil Procedure Code, but also to the other material sections and orders made under 0. XXI Rule 920). 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 of the Indian 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'.

15. In Sri Ranga Nilayan Ramakrishna Rao v. Kandikori Chellayamma : [1950]1SCR806 , the Supreme Court quoted with approval the dictum of the Privy Council, referred to above, and further held as follows -

'Under Art. 180 of the Indian Limitation Act, the period of limitation runs from. the date when the sale becomes absolute. If we give a narrow and literal meaning to these words, the period of limitation should be held to run from the date when the original court of execution confirmed the sale. But, as was pointed out by the Privy Council, the High Court as an appellate Court had the same powers as the trial court and it is only when the appeal was dismissed by the High Court that the order of the trial court confirming the same became absolute. Till the decision of the appellate court, no finality was attached to the order confirming the sale'. (Page 816 of SCR) : (at p. 428 of AIR).

16. In Raju v. Arukkani : AIR1957Mad440 , a Bench of this Court, consisting of Rajamannar C. J. and Panchapakesa Ayyar J. held that the sale will not become absolute until a claim suit arising, after an adverse order, under O. XXI R. 58 came to be disposed of. The reasoning of the Bench is expressed in the following passage -

'....... We are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15th August 1944. Till then the title of the judgment debtor remained to be finally settled. viz. whether the judgment debtor was entitled to the entire property unencumbered or she was entitled only to the equity of redemption at the time of the attachment and the sale. Till the rights were finally adjudicated in the course of the execution proceedings, it cannot be predicated what exactly the purchaser is entitled to get by virtue of his purchase. It will be only then that she can file an application for delivery of possession. If it be finally held that she was only entitled to the equity of redemption, she would be entitled only to symbolical possession under O. XXI R. 96 C. P. C. If, on the other hand, the possessory mortgage was found to be sham and nominal and the judgment debtor was held to be entitled to the entire property, then the decree holder will be entitled to obtain delivery of possession of the property itself. Till this was determined, it cannot be said that the court auction sale has become absolute.' (at Pages 663, 664 of ILR) : (at P. 441 of AIR).

17. The legal principles being what they are, as discussed by us above, we cannot but concur with the view of the learned single Judge that the petitioner could definitely invoke O. XXXIV R. 5 of the Code to make the requisite deposit since the confirmation of the sale has not reached the finality.

18. The second contention urged by the learned Advocate General on behalf of the appellant is that there ought to have been an actual deposit of the amount under O. XXXIV R. 5 of the Code, before the very application is filed under that provision. The provision is unambiguous. The deposit has got to be made at any point of time before the confirmation of the sale. Once the principle is understood, and as the confirmation has not reached the finality, because the appeal is pending and in that sense, there is no confirmation of the sale in the eye of law, the provision will stand satisfied if the deposit is made before the confirmation. We are not for a moment watering down the imperative implications of the said provision by countenancing any such proposition that there could be a payment or adjustment out of court other than the deposit contemplated under that provision. Such a proposition has been discountenanced by a Bench of this Court, consisting of Bell and Govindarajachari JJ. in Madhavan Nayanar v. Paramesswara, AIR 1948 Mad 373. So long as there is no confirmation of sale in the eye of law and the matter is sub judice in appeal, time is available for the judgment debtor to make the deposit and the process of deposit could be worked out until the confirmation of the sale reaches the finality. Deposit into court is not a matter of course and the Civil Rules of Practice lay down the processual aspect in this behalf. We cannot countenance the submission made on behalf of the appellants that the actual deposit must precede the very filing of the application in every case. There must be a deposit and that deposit shodld be made before the confirmation of sale. Here the confirmation is yet to reach the finality. For all these reasons, the Letters Patent Appeal deserves dismissal and accordingly, they are dismissed with costs.

19. Appeal dismissed.


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