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S.V. Ramalingam and ors. Vs. K.E. Rajagopalan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Reported in(1975)2MLJ494
AppellantS.V. Ramalingam and ors.
RespondentK.E. Rajagopalan and anr.
Cases ReferredValliammal v. Subramania Iyer
Excerpt:
- orders. natarajan, j.1. the petitioners in e.a. no. 899 of 1967 (defendants 1, 6 and 7) in o.s. no. 63 of 196 3 on the file of the court of the subordinate judge of madurai are the appellants in the c.m.a. and the petitioners in the c.m.p. the civil miscellaneous petition filed during the pendency of the appeal has raised the controversy whether the mortgagors are entitled to redeem the mortgage subsequent to the confirmation of sale by the executing court , but before the disposal of the appeal preferred against the validity of the sale.2. the appeal and the petition have come to be filed in the following circumstances. for the sake of convenience, the parties will be referred to as they are arrayed in the civil miscellaneous petition. on foot of a mortgage dated 7th january, 1961 for.....
Judgment:
ORDER

S. Natarajan, J.

1. the petitioners in E.A. No. 899 of 1967 (defendants 1, 6 and 7) in O.S. No. 63 of 196 3 on the file of the Court of the Subordinate Judge of Madurai are the appellants in the C.M.A. and the petitioners in the C.M.P. The Civil Miscellaneous Petition filed during the pendency of the appeal has raised the controversy whether the mortgagors are entitled to redeem the mortgage subsequent to the confirmation of sale by the executing Court , but before the disposal of the appeal preferred against the validity of the sale.

2. The appeal and the petition have come to be filed in the following circumstances. For the sake of convenience, the parties will be referred to as they are arrayed in the civil miscellaneous petition. On foot of a mortgage dated 7th January, 1961 for Rs. 7,500 executed by the first petitioner and his sons (petitioners 2 and 3 being two of the sons) in favour of the first respondent the latter obtained a preliminary and a final decree in O.S. No. 63 of 1963 and the hypotheca was brought to sale and it was purchased by the second respondent. The abovesaid mortgage was the third mortgage of the suit property. The second respondent, though the brother of the first respondent, is himself the first mortgagee of the suit property, the said mortgage being an othi dated 3rd November, 1960 for Rs. 63,000. There is also a second and a fourth mortgage of the suit property, but about which detailed mention is not called for in these proceedings. It may, however, be stated that the second mortgage dated 3rd November, 1960, for Rs. 12,000 is in favour of Madurai Cocoa Company, in which the second respondent's son K. Jayaraman is a partner. The fourth mortgage dated 29th November, 1962, is in favour of another son the second respondent by name K. Subramaniam. The preliminary decree passed in O.S. No. 63 of 1963 was for Rs. 11,531-41 P. and it was passed on 31st October, 1963. As already stated the mortgagors did not pay the money decreed under the preliminary decree and hence the final decree was passed on 16th March, 1964. Thereafter, the hypotheca was brought to sale and it appears the mortgagors filed as many as eighteen applications for adjournment of the sale, managing to get adjournments on each occasion by paying sundry amounts, totalling in all to Rs. 7,550. After the nineteenth application for adjournment was dismissed, the hypotheca was sold on 25th July, 1966 for a sum of Rs. 46,000 subject to the prior othi and mortgage, and, as already referred, the second respondent was the successful bidder at the auction.

3. Thereafter, three applications, viz., E.A. No. 895 of 1967, E.A. No. 899 of 1967 and E.A. No. 199 of 1969 were filed under Order 21, Rule 90, Civil Procedure Code, for the sale being set aside. Various grounds such as the auction-purchaser being a benamidar for the decree-holder, the execution proceedings being taken without notice to the fifth defendant despite his having attained majority even on the date of the suit, the absence of proclamation for the sale held on 25th July, 1966 gross under-valuation of the hypo-theca in the sale proclamation etc., were set up to assail the sale. The petitions were resisted by the respondents. Ultimately, by a common order dated 26th October, 1971 the learned Subordinate Judge of Madurai, after elaborately considering the contentions of the petitioners in the respective petitions, dismissed all of them holding that the sale had been properly held and was not vitiated by any defect or material irregularity. Thereafter, the sale in favour of the second respondent was confirmed and the sale certificate itself was engrossed on stamp papers. As the second respondent-auction-purchaser was already in possession as othidar of the property, which is a house property in South Masi Street, Madurai, the question of the auction-purchaser taking possession of the property in pursuance of the sale did not arise.

4. Aggrieved by the dismissal of their petition, E.A. No. 899 of 1967, the petitioners preferred C.M.A. No. 175 of 1972 to this Court. When the appeal was about to be taken up for hearing K.N. Balasubramaniam, learned Counsel for the petitioners filed C.M.P. No. 8385 of 1974 under Order 34, Rule 5 and Section 151, Civil Procedure Code, and the petitioners prayed therein that they should be permitted to pay the balance of the decree amount and redeem the mortgage and the first respondent, viz., the decree-holder should be called upon to enter full satisfaction on such deposit being made. In the affidavit in support of the petition, the first petitioner averred that inasmuch as an appeal had been preferred against the dismissal of E.A. No. 899 of 1967 the confirmation of the sale made by the executing Court had not become final and consequently, the petitioners were entitled to invoke the right of redemption granted to mortgagors under Order 34 , Rule 5 and tender the balance of the decree amount.

5. The second respondent refutes the right of the petitioners to redeem the mortgage after the sale had been confirmed' by the lower Court and has raised various objections in a detailed counter filed by him. Therein, the plea taken is that the petition under Order 34, Rule 5 is highly belated and, in any event, such a petition would not lie after the sale had been confirmed by the lower Court. It is further contended that after the intervention. of a third party auction-purchaser in the execution proceedings, the right of redemption is no longer available to the mortgagors. The other grounds of objection urged in the counter are:

(1) The petitioners have not paid into Court any amount due to the decree-holder as enjoined under Order 34, Rule 5-Civil Procedure Code, and therefore the petition does not satisfy the requirements-of the said provision.

(2) There is no offer in the petition for payment of solatium and other amounts, due to the auction-purchaser and on that ground also, the petition suffers from an unsurmountable infirmity.

(3) By reason of the Court-auction-sale,, the second respondent had deposited into Court Rs. 46,000 and for the period the amount was in Court deposit all along, the second respondent would be entitled to interest exceeding Rs. 23,000 at the rate of 12 per cent. per annum.

(4) The mortgagors are also bound to pay poundage of Rs. 940-50 P. solatium on the purchase-money at 5 per cent. amounting to Rs. 2,300, cost of stamp papers for the sale certificate amounting to Rs. 2,070 and property tax totally to Rs. 13,772 from 1966 onwards, and unless all these amounts were paid of gether with interest on the aggregate o these amounts at 12 per cent. per annum, the petitioner cannot ask for redemption of the mortgage.

6. Before adverting to the arguments of Mr. K.N. Balasubramaniam, learned Counsel for the petitioners and Mr. T.R. Mani, learned Counsel for the second respondent, on the principal controversy in the matter, reference may conveniently be made to two preliminary objections raised by Mr. T.R. Mani. The first contention of Mr. Mani is that payments into Court of all amounts due by the petitioners under Sub-rule (1) of Rule 4 of Order 34 is a condition precedent before an application under Order 34, Rule 5 is entertained, and inasmuch as the petitioners have not deposited the prescribed amount in Court, the petition should be dismissed in limine. In support of this contention, reliance is placed on Madhavan Nainar v. Parameswara Iyer : AIR1948Mad373 , where it has been held that further chance has, no doubt, been given to the mortgagor-judgment-debtor under Order 34, Rule 5 for saving his property notwithstanding his previous laches and default in respect of the provisions contained under Order 33, Rule 3; Order 21, Rule 2; Order 21 Rule 66 and Order 21, Rule 89 at various stages of the case, but that, if he was to avail himself of the extended privilege, he must comply with the stringent provisions of the said rule. Arguing contra, Mr. Balasubramaniam contends that the office will not receive the deposit unless permission is granted by the Court for the deposit being made and therefore, the objection raised by Mr. Mani regarding non-deposit of money should not prevail. The explanation of the petitioners counsel is a tenable and acceptable one. The petitioners have categorically offered, in the affidavit filed in support of the petition, to deposit the balance of decree money and this clearly shows that, but for the unwillingness of the office to receive the deposit without the orders of Court, the amount would have been deposited by the petitioners in accordance with the terms prescribed under Order 34, Rule 5. Hence, the preliminary objection raised by Mr. T.R. Mani cannot be countenanced.

7. The second of the formal objections is that the claim of the petitioners regarding their entitlement to redeem the mortgage should be considered contemporaneously with the civil miscellaneous appeal preferred by them, and should, not be gone into without the appeal itself being heard. The contention is also devoid of merit and cannot be sustained. If the appeal were to be heard and a decision rendered on merits, this petition under Order 34, Rule 5, Civil Procedure Code, would either become infructuous or unsustainable. If the contention of the petitioners that the sale is vitiated by material irregularity were to be accepted and the appeal allowed, the earlier confirmation of the sale will automatically be rendered nugatory and there would be no necessity to go into the question as to whether the petitioners would be entitled to redeem the mortgage during the pendency of the appeal. If, on the contrary, the appeal were to be dismissed, the earlier confirmation of the sale will receive the affirmation of this Court and thereafter the petitioners will not be entitled to invoke Order 34, Rule 5 to their aid to seek redemption of the mortgage. The very purpose of filing this petition will get defeated. In such circumstances, the appropriate and the only stage for examining the claim of the petitioners to redeem the mortgage is before the appeal preferred against the dismissal of E.A. No. 899 of 1967 is heard and disposed of on merits.

8. With regard to the main controversy in the petition, viz., the eligibility of the petitioner's to invoke the provisions contained in Order 34, Rule 5, Civil Procedure Code and redeem the mortgage, despite the confirmation of the sale by the executing Court, on account of the pendency of the appeal, the decision of Ramachandra. Iyer, C.J., in Valliammal v. Subramania Iyer 1944 1 M.L.J. 275 seems to provide a complete answer. That was also a case where a mortgagor sought to redeem a mortgage during the pendency of an appeal preferred against the dismissal of his petition under Order 21, Rule 90, Civil Procedure Code and the sale, subsequent to the dismissal of the petition, had been confirmed by the lower Court. Ramachandra Iyer, C.J., gave a finding in favour of the mortgagor and held thus:

It must be noticed that notwithstanding the fact that the petition for setting aside the sale had been dismissed by the executing Court, the matter was at large before the appellate Court in appeal. It would, therefore, follow that there was no final order of confirmation of sale before the appeal was disposed of. It is clear from the terms of Order 34, Rule 5, Civil Procedure Code, that so long as the sale had been confirmed it will be open to the mortgagors to deposit the amount due together with the solatium as prescribed therein and avoid the sale.

Mr. Mani would, however, contend that Valliammal v. Subramania Iyer : (1964)1MLJ275 , does not lay down the law on the matter correctly and the matter should, therefore, be referred to a Bench for fresh consideration. Alternatively, he would contend that the decision of the Supreme Court in Hukkumchand v. Banzi Lal : [1967]3SCR695 , sets out a different ratio and therefore, the rules in Valliammal v. Subramania Iyer : (1964)1MLJ275 , need no longer be adhered to. For a fuller and better appreciation of the ticklish question in the case, it is necessary to make an ambulatory survey of decisions rendered by this Court and other Courts under different circumstances in construing the scope and effect of confirmation of sale by the executing Court vis-a-vis applications or appeals preferred by the judgment-debtors under Order 21, Rule 90, Civil Procedure Code.

9. Dealing with the case of an auction sale in execution of a mortgage decree followed by an application under Order 21, Rule 9O, Civil Procedure Code, the Privy Council held, in Chandramani Shaha v. Anarjan Bibi , as follows:

Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal and set aside the sale, there would then be no sale, and of course, no confirmation and no absolute sale.

10. In the same case, the Privy Council had to consider the question as to the time from which the three years period provided by the Indian Limitation Act (1908), Schedule I, Article 180 would run for an application under Order 21, Rule 95, Civil Procedure Code, by the purchaser for delivery of possession. In rendering its decision, the Board held as follows:

In the present case, the High Court dismissed the appeals and on such dismissal, the orders of the Subordinate Judge confirming the sale became effective and the sales became absolute.... 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 Article 180 of the 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.

11. In Chellamma v. Ramakrishna Rao : AIR1946Mad337 , a Bench of this Court had to go into the question as to 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. Answering the question in the affirmative, the Bench held that during the pendency of the appeal, the validity of the sale was still in question and until that question was finally decided by the order of High Court, the sale could not be said to have become absolute. The Bench went further and held that the appeal in the High Court must be regarded as a continuation of the proceedings of the lower Court to set aside the sale. The next line of cases deal with a situation where a sale of mortgaged property was confirmed by the executing Court after it had earlier dismissed for default a petition under Order 21, Rule 9O, Civil Procedure Code, and the aggrieved mortgagor had preferred an appeal against the dismissal of his petition for default. In Varadarajan v. Venkatapathy Reddy (1953) 1 M.L.J. 148 : (1953) 66 L.W. 13, this Court held that the effect of restoring the application under Order 21, Rule 90 automatically operated to vacate or render ineffective the earlier order confirming the sale, under Order 21, Rule 92, Civil Procedure Code. This view was arrived at on the reasoning that pendency of on application under Order 21, rule, 90. Civil Procedure Code is a bar to an order of confirmation of sale under Order 21, Rule 92 being made or remaining effective, and that the restoration of an application under Order 21, Rule 9O, dismissed earlier for default, would be tantamount to the application being treated as pending and not disposed of, despite the confirmation of the sale in the interregunum. This view was followed in a later case Ramathat v. Nagarathinammal (1967)1 M.L.J. 260 : (1967) 80 L.W. 124, and it was held that the restoration of the application under Order 21, Rule 90, Civil Procedure Code, automatically operated to vacate or render ineffective the earlier order confirming the sale held in pursuance of the final decree in a mortgage action. The same view has been taken by the Andhra High Court also in Satyanarayana v. Ramamurthi (1960)2 A.W.R. 430, where the position has been enunciated more expressly after holding that it is only where no application under Order 21, Rule 90 or other Rules (Rules 89 and 91) is made within the statutory period, or where such application is made and disallowed, that the Court has power to confirm the sale and that the existence of an application for setting aside a sale would be a bar to make the sale absolute. The Bench went further and held that during the pendency of the appeal, no .finality attaches to the sale notwithstanding the confirmation of the sale by the trial Court.

12. From the cases referred to above it, is clearly seen that a stage of final irrevocability is not reached even after the executing Court confirms the sale of immovable property to an auction-purchaser either on account of applications not being preferred under Rule 89, 9O or 91 of Order 21, Civil Procedure Code, or such applications having been made and disallowed as envisaged under Order 21, Rule 92.

13. Mr. Mani would, however, contend that the situation in the present case ought not to be confused with the situation that existed in Varadarajan v. Venkatapathy Reddy (1953) 1 M.L.J. 148 : (1953) 66 L.W. 13, Ramathal v. Nagarathinammal (1967) 1 M.L.J. 260 : 80 L.W. 124, and Satyanarayana v. Ramamurthi (1960) 2 A.W.R. 430. The argument in all those cases deal with a situation where applications under Order 21, Rule 90 had been dismissed for default, but had been subsequently restored to file by the appellate Court and such restoration had automatically the effect of making the earlier confirmation of sale abortive on the ground that there can be no confirmation when the validity of the sale itself was challenged and. a rendering of decision thereon was imperative. The distinction projected in so far as the instant case is concerned is that the petition under Order 21, Rule 90, had been validly dismissed by the executing Court on merits, and thereafter the sale had been confirmed, and neither the preferment of the appeal nor the allowance thereof would have the effect of putting the clock back in so far as the petition under Order 21, Rule 90 is concerned. Reliance is placed on various factors to highlight the difference between the restoration to file of a petition under Order 21, Rule 9O dismissed for default and the preferment of an appeal against the dismissal on merits of such a petition. It is, first of all, pointed out that Order 41, Rule 5, Civil Procedure Code, clearly sets out that the mere preferment of an appeal shall not operate as a stay of proceeding under a decree or order appealed against, except so far as the appellate Court may order, and execution of decree shall not also be stayed by reason only of an appeal having been preferred. It is nextly pointed out that there is no provision in the Civil Procedure Code which automatically renders ineffective the confirmation of a sale by reason of an appeal being preferred against the dismissal of a petition under Order 21, Rule 9O, Civil Procedure Code. Stress is also laid on the fact that when once a hypotheca is sold in Court auction and the sale is confirmed, the right of redemption available to the mortgagor gets extinguished unconditionally. The argument of Mr. Mani is that once the mortgagor fails to exercise his right under Order 34, Rule 5 to pay the requisite amount and redeem the mortgage before the confirmation of the stile and thereafter the sale itself is confirmed, the mortgagor loses his right of redemption for ever unless he succeeds in getting the sale itself set aside by the appellate Court on ground of fraud, material irregularity etc., in the conduct of the sale.

14. In support of his contentions, Mr. Mani places reliance on the following rulings. A proposition is laid down in Rajaraman v. Allahabad Bank Ltd. A.I.R. 1939 Lah. 79, that, although a suit does not terminate till the passing of a decree, the passing of a preliminary decree does fix the rights of the parties to a certain extent and thus alters their position materially. This reasoning is invoked to contend analogously that even if it were to be held that the confirmation of a sale by the executing Court was subject to further scrutiny in the appeal preferred by the judgment-debtor, the rights of parties get fixed materially and consequently, the right of redemption which was available to the mortgagor prior to the confirmation of the sale would cease to exist after the confirmation of the sale. The following pronouncement occurring in Priti Rekha v. Narain : AIR1956Cal510 , is also pressed into service:

Reading, therefore, Order 21, Rule 92 with Order 34, Rule 5, Civil Procedure Code. I am of opinion that the mortgagor can invoke his equity of redemption any time before the Court makes an order confirming the sale and until the sale becomes 'absolute' thereunder.

Lastly, the learned Counsel leans heavily upon the following view expressed by the Supreme Court in Hukkum Chand v. Banzi Lal : [1967]3SCR695 of the report:

It may be noted that there is no power under Order 34, Rule 5 to extend time and all that it does is to permit the mortgagor-judgment-debtor to deposit the amount before confirmation of sale. It does not give any right to the mortgagor-judgment debtor to ask for postponement of confirmation of sale nor to enable him to deposit the amount.

We have to interpret Order 34, Rule 5-and Order 21, Rule 92 harmoniously and on a harmonious interpretation of the two provisions, it is clear that though the mortgagor has the right to-deposit the amount due at any time before confirmation of sale, there is-no question of his being granted time under Order 34, Rule 5 and if the provisions of Order 21, Rule 92 (1) applied, the sale must be confirmed unless, before the confirmation, the mortgagor-judgment-debtor has deposited the amount as permitted by Order 34, Rule 5 (Page 88)....The judgment-debtor--mortgagor had the right to deposit the amount at any time before confirmation of sale within thirty days after the sale or even more than thirty days after the sale under Order 34, Rule 5 (I), so long as the sale was not confirmed. If the amount had been deposited before the confirmation of sale, the judgment-debtors had the right to ask for an order in terms of Order 34, Rule 5 (1) in their favour (Page 89).

15. A conspectus of the entire matter brings to the surface certain distinct features in the sale and confirmation thereof, of mortgaged' property and the right made available to the mortgagor to redeem the mortgage after the passing; of the final decree and even after the sale of the property in terms of the final,, decree. Order 34, Rule 2, Civil Procedure Code, provides for the passing of a preliminary decree in a foreclosure suit, and acting thereunder, the Court has not only to take account due to the plaintiff-mortgagee at the date of the decree, but has also to give the mortgagor time extending upto six months for payment of the money due to the plaintiff on taking of accounts. Sub-clause (2) of Rule 2 of Order 34 gives the option to the Court, on good cause being shown, to extend, from time to time, the time fixed for payment of the amount adjudged due. And then comes Order 34, Rule 4, which deals with the preliminary decree to be passed in a suit for sale. Lastly, there is Order 34, Rule 5, which states that if the mortgagor, on or before the day fixed or at any time before the confirmation of sale made in pursuance of a final decree makes payment into Court of all amounts due from him, the Court shall allow redemption. The only condition that is enjoined under sub rule (2) is that, if the mortgaged property or part thereof had been sold, the mortgagor would not be entitled to redemption unless he also deposits into Court, for payment to the purchaser, a sum equal to five per cent of the purchase money paid into Court by the purchaser. Such facility is obviously afforded to the mortgagor, because the general principle of law is that there should be no clog on the equity of redemption, until the sale is concluded finally by Court's order of confirmation or as stated, under Order 21, Rule 92, of the sale becoming absolute. Examining the case on hand, I am unable to see what difference there can be in so far as it affects the merits of the case, in the position resulting from an application under Order 21, Rule 90, being restored to file for enquiry on the one hand and an appeal being preferred against an order of dismissal on merits of a petition under Order 21, Rule 9O, Civil Procedure Code. The sustainment of a petition under Order 21, Rule 90 and the allowance of an appeal preferred against the dismissal of such a petition will both have the same effect, viz., of rendering the sale invalid. Though the two situations may arise at different times, viz. the one preceding the confirmation of the sale and the other succeeding an order of confirmation, the resultant effect in the allowance of the petition or the appeal would, undoubtedly, be the setting at naught of the Court sale of the hypotheca. I do not, therefore, agree with the contention of Mr. Mani that the ratio in Varadarajan v. Venkatapathy Reddy (1953) 1 M.L.J. 148 : 66 L.W. 13, Ramathal v Nagarathinammal (1967) 1 M.L.J. 260 : 80 L.W. 124, and Satyanarayana v. Ramamurthy (1960) 2 A.W.R. 430, will have no application to the facts of the instant case.

16. The confirmation or a sale subsequent to the dismissal of a petition under Order 21, Rule 9O 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 vaibility 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 by the executing Court 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.

17. The authorities relied on by Mr. Mani do not lend support to the case of the second respondent. The fixation of rights of parties, consequent on the passing of a preliminary decree, referred to in Rajaraman v. Allahabad Bank Limited A.I.R. 1939 Lah. 79 has no reference to the instant case. By reason of the sale held in terms of the final decree and even the confirmation of the sale thereafter, the mortgagor does not lose his right to canvass the validity of the sale before the appellate Court and, as long as that right subsists, the rights of the parties cannot be said to have become fixed unalterably. With reference to Priti Rekha v. Narain : AIR1956Cal510 , the decision itself makes reference to the statutory right of the mortgagor to invoke his equity of redemption at any time before the sale is confirmed and the sale becomes absolute thereunder. The confirmation of the sale being irretrievably linked with the validity of the sale, the confirmation is nothing more than a contingent one till the validity of the sale is finally upheld by the appellate Court and, consequently, such confirmation cannot seal the fate of the mortgagor in so far as the equity of redemption in his favour in concerned The decision in Hukkum Chand v. Banzi Lal : [1967]3SCR695 , on which considerable reliance is placed by Mr. Mani, was rendered under circumstances totally different from those existing in the instant case. The mortgagor therein did indeed file a petition under Order 21, Rule 90, Civil Procedure Code but subsequently, by agreement with the decree-holder Society, withdrew the application and fixed a certain time limit for payment of the mortgage money as envisaged under Order 34, Rule 5. When default was committed in payment of money within the stipulated time and when further time for deposit was asked for, the Court had to naturally hold that time-limit for deposit was arrived at by consent of parties and therefore the Court had no power to extend the time. That was a situation where the attack on the sale, under Order 21, Rule 9O was given up and therefore, the confirmation of the sale had become an irrevocable one. Such is not the case here, since the validity of the sale is itself as large in the appeal and consequently, the confirmation not having attained the state of absoluteness.

18. Mr. Mani would then contend that if Order 34, Rule 5, is to be construed in this manner it would not only place third party auction-purchasers at a great disadvantage, in that they are made to wait for an endless period of time in a state of indefiniteness, but at the same time it would be conferring on erring and lax judgment-debtors an underserved right to exercise their right of redemption at a belated stage of the case.

19. The further argument of Mr. Mani is that an intractable and contumacious judgment-debtor, having failed to exercise his right under Order 34, Rule 5 before the sale is confirmed by the executing Court, ought not to be allowed to resort to such a right merely because he had preferred an appeal against the dismissal of a petition under Order 21, Rule 90 and when the contentions raised in the appeal are worthless and devoid of merit. It is, no doubt, true that by recognising the right of the mortgagor-judgment-debtor to exercise his right of redemption even after the confirmation of the sale by the executing court on the basis of the appeal filed by him rendering at large the confirmation of the sale, the auction-purchaser is kept in a state of uncertainty for a considerable length of time and is put to hardship, but, nevertheless, the argument of Mr. Mani contains a fallacy. Order 34, Rule 5 provides, the mortgagor has a right to redeem the mortgage till the validity of the sale is finally upheld and as long as that right exists, the mortgagor cannot be denied opportunity to exercise that right. Whether he exercises the right at the earliest opportunity or makes bold to exercise the right at a belated stage of the case, the right continues to subsist and does not get extinguished merely by reason of non-exercise of rights at a particular stage of the matter.

20. Mr. Mani would, lastly, contend that the mortgagor ought not to be allowed to get away with the matter by merely depositing the amount mentioned in the decree as well as a sum equal to five per cent of the amount of the purchase money, without paying further amounts incurred or lost by the auction purchaser by reason of his purchase of the hypotheca in court sale. In support of this argument Mr. Mani. points out that the sum of Rs. 46,000 deposited by the second respondent towards sale price has been lying in Court deposit for nearly eight years without any interest therefor, that the second respondent has incurred expenditure for purchase of stamp papers for the sale certificate being engrossed and has also paid property tax and, unless all these amounts are also paid, the mortgagors should not be allowed to exercise their right under Order 34, Rule 5. These factors can-rot alter the situation in any manner A similar argument was raised in Ramathal v. Nagarathinammal (1967) 1 M.L.J. 260 : 80 L.W. 124, and the claim therein was for reimbursement of value of improvements effected by the auction-purchaser. The Bench deciding the matter, held, that such questions had to be agitated and adjudicated in independent proceedings. The same view would prevail in so far as the second respondent's claim for reimbursement of expenses incurred or moneys lost by him is concerned. He will have to work out his rights in respect of the abovesaid claims in independent proceedings against the mortgagor.

21. In the result, the contention of the petitioners is upheld and following the ratio in Valliammal v. Subramania Iyer : (1964)1MLJ275 ; they are permitted to redeem the mortgage by payment of the balance of the decree amount and five per cent of the purchase money representing the solatium' to be paid to the second respondent. The petitioners are, therefore given time till 31st October, 1974 to deposit in this Court the abovesaid amounts. If the petitioners fail to deposit the said amounts this petition will stand dismissed and the civil miscellaneous appeal will be taken up for hearing on 1st November, 1974 and disposed of on merits. There will-be no order as to costs in this petition.


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