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Sm. Priti Rekha Mitra Vs. Narayan Chandra Dutta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberOriginal Side Suit No. 5052 of 1951
Judge
Reported inAIR1956Cal510
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 92 - Order 34, Rule 5 - Order 49, Rule 3; ;Calcutta High Court Rules - Rules 89, 90 and 93; ;Original Side Rules - Rule 45
AppellantSm. Priti Rekha Mitra
RespondentNarayan Chandra Dutta
Cases ReferredBaruram Kalowar v. Upen
Excerpt:
- .....this court, which i have discussed, and in this case the sale has been con-finned by effluxion of time. rule 5 was substituted for old rule 5 by the transfer of property amendment supplementary act 29 which came into operation on 1-4-1930. comparing the old rule with the new, it is clear that the words, 'or at any time before the confirmation of a sale' are new. these words were intended to recognise the principle that a decree for sale is not sufficient to extinguish the equity of redemption until the sale is confirmed. under the civil procedure code, a sale of immovable property in execution of a decree has to be confirmed under order 21 rule 92 which provides that where no application is made under rule 89 or rule 90 or rule 91 or where such application is made and disallowed, the.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This application raises a short but an important point of procedure and substance. The point) shortly is, when does a mortgagor finally and Irrevocably lose his equity of redemption

2. Before dealing with this point, I shall set out very briefly the facts. The present application is by the defendant-mortgagor. The respondents to this application are the mortgagee and the purchaser. The plaintiff filed this suit against him on 19-12-1951 lor a preliminary mortgage decree for Rs. 14,521-5-6p. The preliminary mortgage decree was passed on 21-8-1952 by my learned brother J. P. Mitter, J. The preliminary mortgage decree was a consent decree providing for payment in instalments. There was default in the payment of instalments and the consent decree provided that in such default the mortgagee-plaintiff would be entitled to an order for a final decree for sale of the mortgaged property. The mortgaged property is No. 3, Ram Kanta Mistry Lane, Calcutta. The final decree for sale was passed on 5-3-1954 as the mortgagor had defaulted in his payments under the consent preliminary decree. Thereafter sale reference proceeded, and on 14-5-1955 the property was sold to respondent Sakti Pada Mitter being the highest bidder at the auction for the sum of Rs. 29,200/-. On 7-6-1955 the mortgagor's solicitor wrote to the mortgagee's solicitor stating that his client would like to set aside the sale by deposit of the amount in Court. The mortgagee's solicitor responded on 8-6-1955 stating that the total amount due, both on account of principal and interest as well as on account of costs, taxed and untaxed, came up to a fiigure of Rs. 19,234-12-7p. To that figure is added an approximate cost of Rs. 2,000/-. The total dues, therefore, on the mortgage would be Rs. 21,264-12-7p. The mortgagor-applicant now wants to pay in this money. He is also prepared to pay 5 per cent of such money deposited by the purchaser to be paid as compensation to him. The applicant now wants relief and to save the mortgaged property which is his ancestral dwelling house, from passing out of his hands. In short, his application is under Order 34 Rule 5, Civil P. C.

3. On behalf of the respondents, the plaintiff-mortgagee and the purchaser, it is contended that the sale has been confirmed by efflux of time under the Rules of this Court and, therefore, the mortgagor has lost his equity of redemption completely and irrevocably, so that he cannot now putin the money and set aside the sale. Reliance isplaced, first, on Rule 89 of Chapter 26 of the Ori-ginal Side Rules. It is said that that Rule lays down the procedure to discharge or vary a report made by the Registrar, it is argued that 14 clays' time is given to an applicant to discharge or vary a certificate or a report in a reference from the date of the filing of such report or certificate. Reference also is made to Rule Si) of the same Chapter which provided that unless discharged or varied in that manner, the report is conclusive evidence of the facts found there. Then Rule 92 of the same Chapter is invoked to say that the certificate or the report has become binding irv this case and except on ground of fraud, surprise or mistake or such other special ground as may be allowed by the Court, it cannot be reopened. In further aid of the argument reliance is placed on Rule 29 of Chapter 27 of the Original Side Rules which provides that the Registrar shall as soon as possible after the sale proceed to certify the result and such report shall within 8 days after the sale be filed and at the cost of the party having the carriage of proceedings. This line of argument is developed by invoking Rule 30 of Chapter 27 which states that a certificate of sale of movable property shall not be liable to objection but a certificate of the result of sale of immovable property or a certificate upon any question of title may be objected to like any other certificate or report of an officer. The argument is advanced further by reliance on Rule 31 which expressly provides :

'Where no application is made to discharge or vary a certificate of the result of a sale of immovable property within the time allowed for applying to discharge or vary a certificate or report of an officer, or where made, has been refused, such certificate, except as provided in Rule 29 and Rule 56, shall be deemed to be confirmed from and after the expiration of the term aforesaid, or from the date of such refusal'.

It is. therefore, said that the sale in this case having taken place on 14-5-1955, the certificate of sale stands confirmed by effluxion of time. There is provision in Rule 32 of Chapter 27 of the certificate being confirmed by an order of Court even before the expiration of the time allowed if a purchaser applies on summons at his own expense.

4. Much of this part of the argument is really beside the point. Here the objection is not to the report or the certificate of the sale. The objection is not inherent in the report or the certificate but extrinsic to it. The objection is not) that the sale is bad or defective or illegal or tainted with any irregularity. The applicant's contention is more fundamental. He says that true a sale has been duly held but the law gives him a right to redeem his mortgage which he can still exercise after sale but before confirmation of the sale. The whole question here is, has the sale been confirmed.

5. The fact that must be stated here at this stage is that no formal confirmation of the sale has yet been made by the Court. In fact the purchaser has applied for confirmation of sale. But that application is pending and has not been disposed of because of the present application. Certificate of sale is obtainable under Rule 45 of Chapter 27 of the Original Side Rules. The purchaser in this case has put in the entire purchase money which is lying in Court.

6. The point for decision cannot be disposed of entirely on the basis of the Original Side Rules without reference to the relevant provisions of the Code of Civil Procedure. Order 34 Rule 5 of the Code uses the words 'Where on or before the day fixedor at any time before the confirmation of a salemade in purusance of a final decree' the defend-ant makes payment into Court of the sums ofmoney specified there, then certain consequences would follow, That apparently indicates the point of time until which equity of redemption can be claimed by the mortgagor. In other words, that point of time on the basis of the language in Rule 5 of Order 34, Civil P. C. is 'on or before the day fixed' or ''at any time before the confirmation of sale'. The question now is, what is the day fixed or what is the time for confirmation of the sale? On behalf of the plaintiff-mortgagee it is said that the point of time is reached as stated in the Original Side Rules of this Court, which I have discussed, and in this case the sale has been con-finned by effluxion of time. Rule 5 was substituted for old Rule 5 by the Transfer of Property Amendment Supplementary Act 29 which came into operation on 1-4-1930. Comparing the old Rule with the new, it is clear that the words, 'or at any time before the confirmation of a sale' are new. These words were intended to recognise the principle that a decree for sale is not sufficient to extinguish the equity of redemption until the sale is confirmed. Under the Civil Procedure Code, a sale of immovable property in execution of a decree has to be confirmed under Order 21 Rule 92 which provides that where no application is made under Rule 89 or 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. That is a clear mandate upon the Court. It is obligatory upon the Court under that provision to make an order confirming the sale when circumstances require it and it is upon such confirmation that the sale becomes 'absolute'. Having regard to Order 49, Rule 3, Civil P. C., neither Order 34 Rule 5 nor Order 21, Rule 92 of the Civil P. C. is excluded from operation in the chartered High Courts. Reading, therefore, Order 21, Rule 92 with Order 34, Rule 5, Civil P. C., I am of the opinion that the mortgagor can invoke his equity of redemption at any time before the Court makes an order confirming the sale and until the sale becomes 'absolute' thereunder.

7. Here it may be argued that Order 21 Rule 92, Civil P. C. does not apply to sales held by the Registrar on the Original Side under a final mortgage decree for sale first because it is not technically speaking a sale of immovable property 'in execution of a decree', and secondly because the Original Side Rules prescribe the entire scheme in such sales under final mortgage decree without enjoining an application for confirmation of the sale. Neither of these two reasons appears to me to be sound. Final decree for sale in a mortgage suit itself prescribes a mode of execution of the mortgage decree by directing the sale of the mortgage property and its ultimate distribution. It is an 'execution of decree' although the method prescribed may be not by way of attachment as under ordinary decrees, and it is also sale of immovable property in execution of mortgage decree. Even technically speaking a sale under a final decree for sale in a mortgage suit is a 'sale of immovable property in execution of a decree' as referred to in Order 21 Rr. 89, 90 and 91, Civil P. C. That is the answer to the first argument. The answer to the second point is that the procedure prescribed by the Rules on the Original Side Rules by the Registrar under a final decree for sale in a mortgage suit is not inconsistent with Order 21, Rule 92 of the Code. No rule on the Original Side actually conflicts with Order 21, Rule 92. On the contrary, Rule 45 of Chapter 27 of the Original Side Rules expressly permits the purchaser to apply to the Court for a certificate of sale (no longer acertificate of the result of sale as in RUle 30) asevidence of title. It is true that the word used in R 45 is 'may' and in that sense the rule is permissive and not obligatory but that is only to bring it in line with and not to override Order 21, Rule 92 of the Code. Besides the practice on the Original Side has been for the purchaser 'invari-ably' as put by McNair, J. in the case of Sm. Sha-mangini Roy v. Sm. Mahalaxmi Rakdhit : AIR1942Cal44 which I shall presently quote, to apply for confirmation of sale. The learned Judge in that case also observed dealing with sales by the Registrar, 'the Court has held that the judgment-debtor after a sale who seeks relief after a sale has been held, should so far as possible, observe the relevant provisions of the Code'.

8. On behalf of the plaintiff-mortgagee, and the purchaser reliance has been placed on certain decisions to which I shall make a brief reference. In my judgment none of these decisions help them and two are definitely against them. One such decision is Sheonarain Sah v. Mt. Deolochan Kuer, reported in 1948 Pat. 208 (AIR V 35) (B). It is a decision given by Imam and Benett, JJ. of the Patna High Courts and relates to the right of contribution under Section 82, Transfer of Property Act. Benett, J. at pages 213-14 of that report observed :

'Neither the right of total redemption nor the right of partial redemption conferred upon the mortgagor by Section 60 of the Transfer of Property Act, 1882 survives the final decree for sale; all that remains thereafter is the different right of total redemption by Order 34 Rule 5 of the Civil Procedure Code.'

This, I am afraid, does not help the contention of the mortgagee or the purchaser. It is not argued that there is any right of redemption apart from Order 34, Rule 5 of the Civil Procedure Code in the present case before me. What is argued is the point of time at which the right of redemption conferred by O, 3-1 Rule 5 of the Civil Procedure Code can be exercised. On that point the Patna decision is no authority. The question on this application is the determination of 'the day fixed' or the time for the 'confirmation of a sale.' In other words, the short point is, when does a confirmation of sale within the meaning of Order 34, Rule 5, Civil P. C. takes place? In the view that I have taken, it cannot be by mere effluxion of time under the Rules of the Original Side of this Court. The other decision far from helping the mortgagee or the purchaser is really against their contention and in favour of the conclusion that I have reached. That is a Calcutta decision of McNair, J. in : AIR1942Cal44 McNair, J., says:

'I cannot accept the argument based on the alleged absence of any provision in the Original Side Rules for the confirmation of a sale. The scheme of the Rules has been explained in reported judgment and I do not propose to analyse that scheme again.'

The learned Judge proceeds further to say :

'Whether the sale has to be confirmed or not under these Rules, in practice the purchaser applies, so i'ar as I am aware, invariably, for confirmation of the sale, & there is before me the application by the purchaser in this case for confirmation of the sale. In previous decision where questions have arisen as to the necessity for st ict compliance with the provisions of the Civil Procedure Code, when dealing with sales by the Registrar, the Court has held that the judgment-debtor who seeks relief after a sale has been held should, so far as possible, observe the relevant provisions of the Code, and in my opinion, in this application, relevant provisions both of the Codeand of the Original Side Rules have been observ-ed by the present applicants.'

In that case McNair, J. ordered relief under Order 34 Rule 5. Here also this decision, therefore, is an authority that while the application for confirm ation by the purchaser is pending before me, re lief under Order 34 Rule 5 can be given. The only othej decision referred to is Baruram Kalowar v. Upen dra Nath Das, reported in : AIR1934Cal822 . But that again is not a decision which says that there can be a confirmation of sale within the meaning of the Civil Procedure Code by efflu-xion of time alone. On the contrary, the obser vations of M. C. Ghosh, J., the learned Judge who delivered judgment there, are against the conten tion of both the mortgagee and the purchaser In fact M. C. Ghosh J. at p. 823 of thao report ob> serves:

'But so long as Rule 5 (Order 34) stands, the judgment-debtor may apply at any time bcfore the confirmation of the sale even though he has by his own action delayed confirmation for many years.'

9. There is yet one more reason why I feel I cannot accept the contention that effluxion of time alone confirms a sale within the meaning of Order 34, Rule 5 of the Civil Procedure Code in sales held by the Registrar of this Court on the Original Side. Now the main basis of the a:gument on this point has been that within the time specified by the Rules of the Original Side the certificate of sale is confirmed. But any time specified by the Rules of this Court is time which can to relaxed by the Court under Rule 46 of Chapter 38, Time fixed by the Rules of the Original S.de Rules is not inviolate. Therefore, such time whether it is 14 days or 8 days after the certificate of sale, the Court can always extend with a view to enable a party so willing to apply for setting aside the certificate of sale. Were it necessary I would have relaxed the time here. Therefore, it cannot be fixed or the sale confirmed by mere efflu-sion of time alone without Court's further fiat. That appears to be borne out by the further Rule, being Rule 93 of Chapter 26, where even after efflu-xion of time when a report is ordinarily binding, the matter is set down for further consideration finally before the Court. That Rule 93 would seem to indicate, therefore, that the Court has seiain of the matter in the sense that it has to finally put its seal or make an offer confirming the sale quite independently 'Of Order 21 Rule 92 which, in my view, also applies to sales on the Original Side.

10. For these reasons, I hold that in a mortgage suit for sale the equity of redemption in a mortgagor survives under Order 34 Rule 5 until the Court makes an order confirming the sale under Order 21 Rule 92. It can be claimed by the mortgagor when an - application by the purchaser himself is pending for confirmation of the sale. The equity of redemption in such cases is not extinguished by the final decree for sale nor by the actual sale itself but survives until the sale is confirmed and made absolute under Order 21, Rule 92 of the Civil Procedure Code or Rule 45 of Chapter 27 of the Original Side Rules by the issue of certificate of sale. This conclusion is approved by the general principle of law that there should be no clog on the equity of redemption until the sale is concluded finally by Court's order of confirmation or what is said by the sale becoming 'absolute' under Or. 21, Rule 92 of the Civil Procedure Code.

11. There will, therefore, be an order granting leave to the petitioner to pay into Court to the credit of the suit the sum of Rs. 2l,264-12-7p as mentioned in Prayer (a) of the petition, andthe Registrar and the Accountant-General shallbe at liberty to accept the same in teams of Prayer(b) of the petition. There will be also an ordergranting leave to the petitioner to pay to the Court5 per cent of the amount deposited by the purchaser for payment as compensation to him, andthe Registrar will be at liberty to accept the samein terms of Prayer (c) of the petitfion. I furtherorder and direct that upon these payments being made, the sale of the mortgaged premises on14-5-1955 be set aside and satisfaction entered interms of Prayer (d) of the petition. There willbe incidental orders in respect of title deeds interms of Prayer (e) of the petition. The applicant will pay the costs of this application to theplaintiff in terms of Prayer (i) of the petition andwill also pay the costs of this application to thepurchaser. I certify the Chamber Summons tobe a fit one for the employment of Counsel.


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