Chettiar Vs. Ramasami Gounder & Anr  Insc 221 (17 April 2001)
Mohapatra & Brijesh Kumar Brijesh Kumar, J.
appeal has been preferred by the judgment-debtor, against the judgment and
order dated 16.10.1992 passed by the Madras High Court in Civil Revision
Petition No.513 of 1990 stemming out of execution proceedings, setting aside
the order by which the application moved by the judgment-debtor under Order 34
Rule 5 CPC was allowed in appeal by the Addl. District Judge, Salem.
brief facts are that two mortgages were created by V.K. Palaniappa Chettiar
(died and whose LRs are on record as petitioners) in favour of respondent No.2
M. Karuppuswamy. The mortgagee filed O.S. No.863 of 1973 for recovery of
mortgage money. The suit was decreed and a preliminary decree was passed by the
Ist Addl. Sub-Judge, Salem and the final decree was also
passed on 3.7.1974. The decree-holder moved application for execution of the
decree in R.E.P.No.45 of 1980 in pursuance whereof, the property of the
judgment-debtor was auctioned on 9.10.1980. The respondent No.1 Ramaswamy Gounder
is the auction purchaser of the property. The auction sale was confirmed on
3.11..1981 under Order 21 Rule 92 CPC and the application preferred by the
judgment-debtor under Order 21 Rule 90 was dismissed .
by the order dismissing the application, moved by the judgment-debtor under
Order 21 Rule 90 CPC, he preferred an appeal some time in August, 1982 viz. C.M.A.No.
78 of 1982 in the Court of the District Judge, Salem. Later, it appears that the judgment-debtor also moved an
application I.A. No.65 of 1988 (I.A.No.594/83 1st ADJ) under Order 34 Rule 5
CPC. It also transpires that the judgment-debtor was permitted by the Appellate
Court to deposit the amount which he did on 6.4.1985. However, the C.M.A. No.78
of 1982 as well as I.A.No.65 of 1988 ultimately came to be finally disposed of
by the IInd Addl.District Judge, Salem who by order dated 23.8.1988 dismissed C.M.A.No.78 of 1982 but allowed
I.A.No.65 of 1988.
learned Appellate Court placed reliance upon two decisions reported in 2 M.L.J.
1975 page 494 (S.V. Ramalingam and another vs. K. Rajagopal and another) and
for the proposition that a petition under Order 34 Rule 5 CPC can be
entertained during the pendency of an appeal against the order rejecting the
application under Order 21 Rule 89 and 90 CPC for setting aside the sale. The
proposition which was relied upon, in view of the two decisions referred to
above, is that even though the application for setting aside the sale was
dismissed by the executing court yet in appeal against such an order, the
matter remains at large before the Appellate Court and confirmation of sale is
not still final until disposal of the appeal. The Appellate Court, as indicated
earlier, dismissed the appeal preferred against the order of the execution
court dismissing the application for setting aside of the sale moved under
Order 21 Rule 90 CPC but allowed the application I.A.No.65 of 1988 moved under
Order 34 Rule 5 CPC to set aside the sale on deposit of decretal amount.
auction purchaser namely, Ramaswamy Gounder, preferred Civil Revision under
Section 115 CPC against the order dated 23.8.1988 allowing I.A. No.65 of 1988.
No revision seems to have been preferred by the judgment-debtor against the
part of the appellate order dismissing their appeal C.M.A.No.78/1982. The revisional
court held that it is permissible to move an application under Order 34 Rule 5
CPC during the pendency of an appeal against the order of the execution court
refusing to set aside the sale under Order 21 Rule 90 CPC as the order passed
would be in a nebulous state, and the order on being set aside in appeal, the
application under Order 34 Rule 5 CPC would be deemed to have been filed before
confirmation of the sale. But in the facts of the present case, the revisional
court came to the conclusion that the Appellate Court, by the same order first
rejected the appeal C.M.A.No.78 of 1982 preferred against the order passed by
the execution court refusing to set aside the auction sale but thereafter
allowed the application I.A.No.65 of 1988 under Order 34 Rule 5. The order,
therefore, it was observed, was self-contradictory as while confirming the sale,
application under Order 34 Rule 5 CPC could not be allowed. Thus the order
passed in I.A.No.65 of 1988 under Order 34 Rule 5 CPC has been set aside by the
revisional court. This order is under challenge by the judgment-debtor.
appreciate the point, we may look to the relevant provisions. Order 21 Rule 89
CPC provides that where immovable property has been sold in execution of a
decree, any person claiming an interest in the property may apply for setting
aside of the sale on depositing certain amount as indicated in the provision.
Order 21 Rule 90 provides for moving an application to set aside the sale on
the ground of irregularity or fraud in publishing or conducting the sale. Order
21 Rule 92 provides that where no application is made under Rule 89 or Rule 90
or where such application has been moved and disallowed, the court shall make
an order confirming the sale and the sale will become absolute.
present case, undisputedly, the sale was confirmed and was made absolute under
Order 21 Rule 92 CPC.
also appears from the facts narrated in the judgment of the High Court that the
sale certificate was issued and symbolic possession was also delivered to the
auction-purchaser. The appeal was, however, preferred namely, C.M.A.No.78 of
1982 during the pendency of which application under Order 34 Rule 5 was made.
Order 34 Rule 5 CPC reads as follows:-
Final decree in suit for sale.-(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
the plaintiff to deliver up the documents referred to in the preliminary
decree, and, if necessary, -
him to transfer the mortgaged property as directed in the said decree, and
also, if necessary,-
him to put the defendant in possession of the property (2) Where the mortgaged
property or part thereof has been sold in pursuance of a decree passed under
sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1)
of this rule, unless the defendant, in addition to the amount mentioned in
sub-rule (1), deposits in Court for payment to the purchaser a sum equal to
five per cent of the amount of the purchase-money paid into Court by the
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.
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.
of the above provision would make it clear that the judgment-debtor is required
to make deposit of all amounts due in court, on or before the day fixed or any
time before the confirmation of sale is made in pursuance of a final decree
passed under Sub-rule (3).
present case, admittedly, the application was moved under Order 34 Rule 5 CPC,
after the order of confirmation of sale was passed rejecting the objections
preferred by the judgment-debtor under Order 21 Rule 90 CPC but during the pendency
of appeal against the above noted order passed by the execution court. The
correctness of the contention raised on behalf of the judgment-debtor about
maintainability of the application under Order 34 Rule 5 CPC is not in doubt. A
decision of this Court on the point is reported in (1989) 4 SCC 344 (Maganlal
vs. M/s Jaiswal Industries, Neemach and others). It has been held that
notwithstanding confirmation of sale, Order 34 Rule 5 CPC would still be
attracted where appeal against the order of confirmation is pending, as till
the appeal is finally decided, the sale does not become absolute. Reliance was
placed on some earlier decisions of this Court including a case reported in
1950 SCR 806 (Sri Ranga Nilayam Rama Krishna Rao vs. Kandokori Chellayamma
alias Mangamma and another) . In paragraph 14 of the Judgment in Maganlals case
(supra), their Lordships observed as follows:-
this view of the matter we are of the opinion that in case the provisions of
Order XXXIV, Rule 5 of the Code are held to be applicable to the facts of the
instant case appropriate relief can be granted thereunder as the order of
confirmation of the sale passed by the High Court in favour of the first
purchaser has not become absolute due to the pendency of these appeals against
that order nor has the right of redemption of Maganlal yet extinguished.
has also been placed upon two recent decisions of this Court one of which is
reported in (1999) 8 SCC 511 [U. Nilan vs. Kannayyan (Dead) through LRs.].
Considering the whole gamut of case law on the point, it has been held that the
confirmation of sale would be absolute only after final orders are passed in
appeal. The reason being that in case the appeal succeeds, there would be no
confirmation of the sale and in such circumstances, an application moved under
Order 34 Rule 5 CPC during pendency of the appeal would be deemed to have been
moved before confirmation of the sale. Same view has been reiterated in another
decision reported in (2000) 3 SCC 664 (Kharaiti Lal vs. Raminder Kaur and
others). Learned counsel for the respondents, however, submitted that in the
present case, though it is true that the judgment-debtor was given permission
to deposit the amount on an application moved during the pendency of the appeal
No.78 of 1982, but finally by means of one order, the said appeal viz. C.M.A.
No.78 of 1982 was dismissed, i.e., the order of confirmation of the sale was
upheld, but on the other hand, application under Order 34 Rule 5 CPC was
allowed. In such a situation, it could not be said that the application under
Order 34 Rule 5 CPC would, in any manner, be relatable to any point of time
prior to confirmation of the sale. That position could be deemed only in case
appeal C.M.A. No.78 of 1982 was allowed and the order of confirmation of sale
was set aside. Thus the requirement of Order 34 Rule 5 CPC that the amount
should be deposited in court on the date fixed for or before confirmation of
sale, is not fulfilled. Yet another fact, which is noticeable, is that the
judgment-debtor did not file any Revision against the part of the order
dismissing appeal No.78 of 1982. The order, thus, as passed by the Addl.
District Judge, attained finality. In no way, it can be said that the
application under Order 34 Rule 5 CPC can be treated to have been moved before
confirmation of the sale.
counsel for the appellants, in connection with the above, submitted that once
the court allowed to make the deposit under an application moved under Order 34
Rule 5 CPC, it was not necessary to challenge the part of the order dismissing
the appeal No.78 of 1982. In our view, it will create a very anomalous
situation. It has not been submitted that the condition for moving an
application under Order 34 Rule 5 C.P.C. before confirmation of sale is not a binding
pre-condition. Such application could be deemed to have been moved before
confirmation of the sale, on Appeal being allowed during pendency of which
money was deposited .viz CMA No. 78/82. As a result of dismissal of appeal
No.78 of 1982, the conditions laid down for moving an application under Order
34, Rule 5 CPC is not fulfilled.
counsel for the appellants has submitted that both matters have been disposed
of by a common order and the application under Order 34 Rule 5 was allowed
first and thereafter the appeal was dismissed, or in any case simultaneously.
We feel that nothing significant would turn upon this. Since however such an
argument has been raised, it is to be noticed that the Appellate Court first
dealt with the appeal No.78 of 1982 and dismissed the same.
in the later part of the judgment, disposed of the I.A. No. 65 of 1988,
allowing the same, that is to say, first upholding the order confirming the
sale and rejecting the objections. In the normal course, it is submitted that
after dismissing the appeal No.78/82, the appellate court should have rejected
the other application viz. I.A No.65/88 under Order 34, Rule 5 CPC having not
been moved before confirmation of sale.
already been indicated earlier that the judgment-debtor did not challenge the
orders of the appellate court by which his appeal No.78/82 was dismissed.
other hand, the decree-holder challenged the order of the appellate court
allowing the application IA No.65/88 moved under Order 34 Rule 5 CPC. Learned
counsel for the appellants submitted that it was not necessary to challenge the
orders by which his appeal No.78/82 was dismissed since the application under
Order 34 Rule 5 CPC namely, I.A.No.65/88 was allowed and the appellants had
been granted permission to deposit the amount in the Court. We fail to
appreciate the argument. The application under Order 34, Rule 5 CPC moved by
the appellant-judgment- debtor was entertained only during the pendency of
the said application not been pending, there was no occasion to permit the
judgment-debtor to make the deposit of the decretal amount etc. under Order 34
Rule 5 C.P.C.
the sale had been confirmed prior to moving of the application. In such
circumstances, the appellants cannot feel totally unconcerned with the final
order passed in the main appeal namely C.A. No. 78/82. The dismissal of the
appeal would only affirm the confirmation of the sale which was in nebulous
state during pendency of the appeal. We are not considering here, at this
stage, as to what appropriate order could or should have been passed on deposit
of the money during the pendency of the appeal. The fact remains that two
orders one dismissing the appeal and the other allowing the application would
not co-exist rather they would be self- contradictory in nature. Somewhat
similar facts and situation came to be considered by this Court in the case of
U. Nilan (supra). There also it appears a number of applications had been moved
ultimately resulting in two contradictory orders. The argument which was raised
on behalf of the decree-holder about existence of contradictory orders and the
judgment- debtor having not moved this Court against dismissal of his appeal,
was found to be valid but it was observed that after permitting deposit of the
amount and passing an order for return of the documents under Order 34 Rule 5
(a) CPC the appeals should not have been dismissed. Ultimately, considering the
facts and circumstances of the case and number of applications moved, it was
observed, invoking the principles contained under Order 41, Rule 33 CPC that
the orders passed in two appeals against the judgment-debtor by the High Court,
though not challenged, should be set aside to do complete justice between the
parties and to bring the two contradictory orders in conformity. So the
appellate orders had been set aside suo motu. advanced In this case learned
counsel for the appellants has not any submissions about applicability or for
application of principles as contained under Order 41, Rule 33 CPC. On the
other hand, he submitted that he was not raising any question of equity etc.
but based the case of the appellants only on the legal position which according
to us is clear that on dismissal of appeal against an order of confirmation of
sale the petition under Order 34, Rule 5 CPC filed during pendency of the
appeal could not be related back to a point of time prior to confirmation of
sale. Such a situation will fall short of complying with all the conditions as
required under Order 34 Rule 5 CPC.
result of the discussion held above, we find no merit in the appeal and it is
accordingly dismissed. Costs easy.