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PETITIONER: HUKAMCHAND

       Vs.

RESPONDENT: BANSILAL & ORS.

DATE OF JUDGMENT: 19/04/1967

BENCH: WANCHOO, K.N. (CJ) BENCH: WANCHOO, K.N. (CJ) BHARGAVA, VISHISHTHA MITTER, G.K.

CITATION:  1968 AIR   86            1967 SCR  (3) 695  CITATOR INFO :  R          1974 SC  87  (11)  D          1983 SC 428  (1,3,4)  RF         1985 SC1124  (7)  R&E        1992 SC 385  (6,7)

ACT: Civil  Procedure Code, 1908, O. XXXI, rr. 90. 92, O.  XXXIV, r.  5-Judgment-debtor making application under O. XVI r.  90 after decree passed-Application withdrawn and time  extended with  consent  of parties-Whether court has power  to  grant further extension or must confirm sale under O. XXI. r. 92.

HEADNOTE: The  respondents  were  members  of  a  Cooperative  housing society  and  ’had created a mortgage on their  property  in favour of the society.  As an amount due under the  mortgage was  not paid, the matter was referred to the  Registrar  of Cooperative  Societies and he made an order on May  1,  1957 directing  the respondent to pay the amount due from  August f.  1953 till the debt was discharged.  He further  directed that if the amount was not paid, the property could be  sold in  satisfaction of the amount.  The amount was not paid  as directed  and  the property was therefore sold on  April  7, 1958  to the appellant.  As an application was made  by  the respondents  on  May 3, 1958 under O. XXI, r.  90  the  sale could  not  be  confirmed under O. XXI,  r.  92  until  this application  was  disposed  of.   The  proceedings  on   the application  continued up to October 7, 1958 when  an  order was  passed  with  the consent of the  parties  whereby  the respondents  were  granted time till November  21,  1958  to deposit  the amount due and the application under O. XXI  r. 90  was  dismissed as withdrawn.  When the  matter  came  up before  the executing court on November 22, the court  noted that   no  amount  bad  been  deposited  and   although   an application  was  made on behalf of the  respondents  for  a further extension of time, the executing court held that  as the society decree-holder and the auction purchaser were not willing  to  extend time, the court could  not  extend  time which  had been given under an agreement of the  parties  by way  of compromise.  The court therefore confirmed the  sale under O. XXI r. 92.

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After  appeals to the District Judge and a single  bench  of the  High  Court,  a Division Bench,  in  a  Letters  Patent Appeal,  held  that O. XXXIV r. 5 would apply in a  case  of ’this  kind  and  that even if it did not apply.  it  was  a fundamental principle that before a mortgagor could be  pre- vented from making the payment and redeeming ’the  property. his  rights must have come to an end and they would come  to an end only when his title was lost by confirmation of sale. The  court allowed the appeal holding that  the  application for extension of time was wrongly rejected by the  executing court as it had the power to grant an extension.  It further directed  that  as some amount had been paid by  he  respon- dents,  if on making up the accounts it was found  that  any additional  amount was due the court would  give  reasonable time for this to be deposited. On appeal to this Court, HELD  : The order of the executing court refusing  extension of  time and confirming the sale in favour of the  appellant under O. XXI r. 92 was correct. [702B] 696 It  was  not  open to the executing  court  to  extend  time without the consent of parties, for time between October  7, 1958 to November 21, 1958 was granted by consent of parties. Section  148 of the Code of Civil Procedure would not  apply in these circumstances. [701H] Though O. XXXIV r. 5(1) recognises the right of the judgment debtor  to pay the decretal amount in an execution  relating to  a  mortage  decree  for sale  at  any  time  before  the confirmation  of sale, the rule does not give any  power  to the court to grant time to deposit the money after the final decree  has been passed.  It is not open to the court to  go on  fixing  date after date and postponing  confirmation  of sale merely to accommodate a judgment-debtor.  A  harmonious construction of O.  XXXIV  r.  5 and O. XXI r. 92  makes  it clear that if the provisions of O. XXI  r. 92(1)  apply  the sale  must be confirmed unless before the  confirmation  the mortgagor  judgment-debtor  has  deposited  the  amount   as permitted by O. XXXIV r. 5. [699D-E.  H; 700E] Janak Rai v. Gurdial Singh [1967] 2 S.C.R. 77, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeals  No.  1005  of 1964. Appeal  by special leave from the judgment and  order  dated July  12,  1962 of the Bombay High Court,  Nagpur  Bench  in appeal No. 16 of 1960 under the Letters Patent. A.   S.  Bobde,  G.  L. Sanghi, and O. C.  Mathur,  for  the appellant. N.   C. Chatterjee and M. S. Gupte, for respondents Nos.   1 and 2. W.   S. Barlingay and A. G. Ratnaparkhi, for respondent  No. 4. The Judgment of the Court was delivered by Wanchoo,  C.J. This is an appeal by special leave  from  the judgment  of  the  Bombay  High  Court  and  arises  in  the following circumstances.  The respondents were members of  a Co-operative  Housing Society and had created a mortgage  on their property in favour of the society.  As the amount  due under the mortgage was not paid, the matter was referred  to the Registrar, Co-operative Societies, and he made an  order dated  May 1, 1957 that the respondents should pay a sum  of Rs. 9,000 and odd and interest at Rs. 12 per cent per  annum from August 1, 1953 till satisfaction of the debt due to the

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Society.  The Registrar further directed that if the  amount was not paid in cash to the society, the property  mentioned in  his order would be sold in satisfaction of  the  amount. The order also provided that in case the amount due was  not realised  from the sale of the property, ’the society  would have  the right to proceed against the respondents  for  the balance.  The amount was not paid as directed in the  order. Consequently  an application was made to the civil court  as provided  by law for recovery of the amount under the  order of the Registrar which amounted to a decree.  In consequence the property on which charge was created by the order of the Registrar was brought ’to 697 sale.  The sale was held on April 7, 1958 and the  appellant being  the  highest bidder, the sale was  concluded  in  his favour. Normally  the sale would have been confirmed after 30  days, if  no application had been made under O. XXI r. 90  of  the Code  of  Civil  Procedure,  for O. XXI  r.  92  inter  alia provides that "where no 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 sale  and thereupon the sale shall become absolute".  As  an application had been made on May 3, 1958 under O. XXI r. 90, the  sale could not be confirmed till that  application  was disposed of.  Proceedings under O. XXI rule 90 seem to  have gone  on upto October 7, 1958.  On that day it appears  that one   of  the  respondents  gave  evidence  as  a   witness. Thereafter  it was the turn of the Society decree-holder  to give  evidence.   But  before the evidence  of  the  society began, it appears that respondents requested for one month’s time to deposit the decretal amount along with the  auction- purchaser’s  commission.   They also appear to  have  stated that  in  that event they were prepared  to  withdraw  their application under O. XXI r. 90.  The society as well as  the auction-purchaser  had no objection to time  being  allowed. The   executing   court  therefore  granted  time   to   the respondents  till  November 21, 1958 to deposit  the  entire decretal   amount   along   with   the   auction-purchaser’s commission.  After time was thus allowed with consent of the parties, the application under O. XXI r.     90          was dismissed as withdrawn with no order as to costs. On  November  20,  1958,  an application  was  made  by   he respondents in which they referred to what had been  ordered on  October 7, 1958.  They further stated that November  21, 1958  was a holiday and it was not possible to  deposit  the amount on that day though they were prepared to do so.  They consequently prayed for time for one day so that the deposit might be made on November 22, 1958.  No order was passed  on this  application  on November 20, 1958 though it  bears  an endorsement of the executing court to the effect that it had been filed on November 20, 1958.  November 21, 1958 being  a holiday it appears that the matter came before the executing court on November 22.  On that day the court noted that  no amount had been deposited.  The order-sheet also shows  that counsel for the respondents prayed for time for a fortnight. The society decree-holder as well ’as the  auction-purchaser (appellant)  opposed the prayer for extension of time.   The executing  court held that as the society decree-holder  and the  auction-purchaser were not willing to extend  time  the court  could not extend time which had been given  under  an agreement  of the parties by way of compromise.   The  court therefore  rejected  the prayer for extension  of  time  and thereafter confirmed the sale as required by 0 XXI r. 92  as the application under O. XXI r.    90   had   already   been

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dismissed on October 7, 1958. 698 The  respondents went in appeal to the District  Judge.   He held  that the court had always the power whether  under  S. 148 of the Code of Civil Procedure or otherwise, to postpone passing  of orders confirming sale of immovable  properties. He,  went  on  to hold that the  executing  court  erred  in holding  that it had no power to grant further extension  of time.   The appeal was therefore allowed, the order  of  the executing  court  set aside and the case  remitted  to.  the executing  court for deciding the application for  extension of  time  on merits.  It may be mentioned  that  though  the District  Judge  said  in the  order  that  the  application presented  on  November 22, 1958 for granting  further  time would  be disposed of after hearing parties and  considering the  merits  of  the  case, there was  in  fact  no  written application on November 22, 1958 and there was only an  oral prayer.   That  however  makes no  difference  to  the  main question before us. There was then a second appeal ’by the appellant to the High Court.   A question was raised in the High Court whether  O. XXXIV r. 5 applied to the present case.  The learned  Single Judge  seems to have held that O. XXXIV r. 5 did not  apply. He further held that in view. of the provisions of O. XXI r. 92, the sale was rightly confirmed and s. 148 of the Code of Civil  Procedure  could  not  under  the  circumstances   be invoked.  The appeal therefore was allowed and the order  of the executing court restored. Then  there was a Letters Patent Appeal by the  respondents. The  Division Bench appears to have held that O. XXXIV r.  5 would apply in a case of this kind.  It also went on to  say that  even  if  O.  XXXIV  r. 5 did  not  apply,  it  was  a fundamental  principle  that  before a  mortgagor  could  be prevented   from  making  the  payment  and  redeeming   the property, his rights must have come to an end and they would come to an end only when his title was lost by  confirmation of  sale.   It went on to hold that if the  application  for extension of time was wrongly rejected if the mortgagor  had the right and the court had ’the power to grant  adjournment it would be open in appeal to consider whether the executing court refused the adjournment properly or not.  If in appeal the  court  came ’to the conclusion that the  order  of  the executing  court refusing extension of time was  wrong,  the confirmation  which followed on such wrong order would  fall and  the  mortgagor  judgment debtor would  be  entitled  to deposit the amount.  It appears that as the respondents  had deposited  some money after the order of the District  Judge in appeal, the Letters Patent Bench allowed the appeal,  set aside the order of the learned Single Judge and restored the order of the District Judge and further set aside the  order of confirmation made by the executing court on November  22, 1958.   It  also ordered that the amount  lying  in  deposit should  be  paid  to the  decree-holder  mortgagee  and  the auction-purchaser.   It may be added that this  deposit  was not made before the confirmation 69 9 of  sale on November 22, 1958 but long afterwards  in  1959. It  further directed that if on making up the  accounts,  it was  found that any additional amount had to  be  deposited, the  court  would  give reasonable  time  to  the  judgment- debtors,  namely,  the present respondents before  us.   The High  Court  having refused leave to appeal,  the  appellant obtained special leave from this Court, and that is how  the matter has come before us. The principal question that arises for decision in this case

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is whether the executing court was right in the view that it could  not  extend time which had been given by  consent  of parties  on October7, 1958.  If that view is correct,  there would be no difficulty in holding, in view of O. XXI r.  92, that the order confirming sale was proper.  We shall proceed on that assumption that O. XXXIV c. 5 applies in the present case  and  that the order of the Registrar which  was  under execution was a final decree in a mortgage suit. O. XXXIV r. 5(1)  gives  an opportunity to the judgment’  debtor  in  a mortgage  decree for sale to deposit the amount  due  under the  mortgage decree at any time before the confirmation  of sale  made in pursuance of the final decree, and if  such  a deposit is made the court executing the decree has to accept the  payment  and make an order in favour of  the  judgment- debtor in terms of’ O. XXXIV r. 5 (1).  Though O. XXXIV r. 5 (1)  recognises the right of the judgment-debtor to pay  the decretal  amount  in  an execution relating  to  a  mortgage decree  for  sale at any time before,  the  confirmation  of sale,  that in our opinion does not mean that be  said  rule gives  power to the court to extend time for payment  on  an application made by the judgment-;debtor.  There is- no pro- vision in O. XXXIV r. 5 (1) like that contained in O.  XXXIV r.  4 (2) to extend time for payment after the final  decree is  passed in a mortgage suit.  As we read O. XXXIV r. 5  it only  permits he judgment-debtor to deposit the amount  due. under  the  decree and such other amount as may  be  due  in consequence  of  a  sale having taken  place,  provided  the deposit is made before the confirmation of sale.  But  there is no power in O. XXXIV r. 5 (1) to grant extension of  time and postpone confirmation of sale there:or.  The observation of the District Judge that the court has always the power to postpone   passing  orders  confirming  sale  of   immovable property  is  in  our view incorrect, in  the  face  of  the provisions  contained in O. XXI r. 92 (1).   That  provision makes  it  absolutely clear that if no application  is  made under  r.  89, r. 90 or r. 91 or where such  application  is made  and  disallowed,  the  court  has  to  make  an  order confirming the sale and thereupon the ,ale becomes absolute. It is not open to the court to go on fixing late after  date and postponing confirmation of sale merely to accommodate  a judgment-debtor.   If  that  were so, the court  may  go  on postponing  confirmation  of  sale for  years  in  order  to accommodate   a   judgment-debtor.   What  O.  XXI   r.   92 contemplates   is  that  where  conditions  thereunder   are satisfied an order for confirmation 700 must  follow.’  Further we have already  indicated  that  O. XXXIV r. 5 does not give any power to court to rant time to deposit  the money after the final decree has  been  passed. All  that it permits is that a judgment-debtor  can  deposit the amount even after the final decree is passed at any time before the confirmation of sale and if he does so, an  order in  terms  of  O. XXXIV r. 5 (1) in his  favour  has  to  be passed.  With respect we cannot understand what the  Letters Patent  Bench meant by saying that before a mortgagor  could be prevented from making payment and redeeming the property, his rights must have come to an end and that they could  not come  to  an end unless his title to the property  had  been lost  by confirmation of sale.  It is true that so  long  as his  right to redeem subsists the mortgagor may  redeem  the property.   It is this principle which is recognised  in  O. XXXIV r. 5 which provides that the mortgagor judgment-debtor can  deposit the amount due even after the final decree  has been passed but this deposit must be made at any time before confirmation  of  sale.  It may be noted that  there  is  no

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power  under  O. XXXIV r. 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 in order to enable  him to  deposit the amount.  We have to interpret O. XXXIV r.  5 and   O.  XXI  r.  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 O. XXXIV r. 5 and  if  the provisions  of  O.  XXI r. 92 (1) apply  the  sale  must  be confirmed unless before the confirmation the mortgagor judg- ment-debtor  has  deposited the amount as  permitted  by  O. XXXIV r. 5. We may in this connection refer to the  decision of this Court in Janak Rai v. Gurdial Singh(1), where it has been laid down that once the conditions of O. XXI r. 92  (1) are  complied  with, the executing court  must  confirm  the sale. It is on these principles that we have to decide whether the trial court was correct.  We have already indicated that the sale was held on April 7, 1958, and in the normal course  it would   have  been  confirmed  after  30  days   unless   an application under r. 89, r. 90, or r. 91 of O. XXI was made. Besides, this case is, as we have already assumed, analogous to the case of a final mortgage decree.  The judgment-debtor mortgagor  had the right to deposit the amount at  any  time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under O. XXXIV r. 5 (1 ) 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 (1)  [1967] 2 S.C.R. 77. 70 1 O.   XXXIV  r.  5  (1) in their favour.   In  this  case  an application  under O. XXI r. 90 had been made and  therefore the  sale could not be confirmed immediately after  30  days which  would be the normal course; the confirmation  had  to await the disposal of the application under O. XXI r. 90.  O Chat application was disposed of on October 7, 1958 and  was dismissed.  It is obvious from the order-sheet of October 7, 1958  that  an oral compromise was arrived  at  between  the parties  in court on that day.  By that compromise time  was granted to the respondents to deposit the entire amount  due to  the decree-holder and the auction-purchaser by  November 21,  1958.  Obviously the basis of the compromise  was  that the  respondents withdrew their application under O. XXI  r. 90 while the decree-holder society and the auction-purchaser appellant  agreed  that time might be given to  deposit  the amount up to November 21, 1958.  If this agreement had  ’not been  arrived at and if the application under O. XXI  r.  90 bad  been dismissed (for example, on merits) on  October  7, 1958,  the court was bound under O. XXI r. 92(1) to  confirm the sale at once.  But because of the compromise between the parties  by  which  the respondents were given  time  up  to November 21, 1958, the court rightly postponed the  question of  confirmation  of  sale  till that  date  by  consent  of parties.  But the fact remains that the application under O. XXI  r.  90  had  been dismissed  on  October  7,  1958  and thereafter  the court was bound to confirm the sale but  for the compromise between the parties giving time upto November 21, 1958. Now  let us see what happened about November 21,  1958.   On November   20,  1958,  an  application  was  made   by   the

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respondents praying that they might be given one day more as November  21,  1958 was a holiday.  No order was  passed  on that date, but it is remarkable that no money was  deposited on  November 20, 1958.  When the matter came up  before  the court  on November 22, 1958 no money was deposited  even  on that  day.   Now  under O. XXXIV r. 5 it  was  open  to  the respondents  to  deposit the entire amount on  November  22, 1958 before the sale was confirmed, but no such deposit  was made  on November 22, 1958.  On the other hand, counsel  for the respondents prayed to the executing court for  extension of  time  by  14 days.  The  executing  court  refused  that holding that time upto November 21, 1958 had been granted by consent and it was no longer open to it to extend that time. The executing court has not referred to O. XXI r. 92 in  its order, but it is obvious that the executing court held  that it  could  not  grant time in the absence  of  an  agreement between the parties, because O.    XXI  r. 92 required  that as the application under O. XXI r. 90  had  been  dismissed, the sale must be confirmed.  We are of the view that in  the circumstances  it  was not open to the  executing  court  to extend  time  without consent of parties  for  time  between October 7, 1958 to November 21, 1958 was granted by  consent of  parties.  Section 148 of the Code Civil Procedure  would not apply 702 in these circumstances, and the executing court was right in holding  that  it  could not  extend  time.   Thereafter  it rightly the sale as required under O. XXI r. 92, there being no  question  of the application of O. XXXIV r. 5,  for  the money had not been deposited on November 22, 1958 before the order of confirmation confirmed was passed.  In this view of the  matter,  we  are  of opinion  that  the  order  of  the executing  court refusing grant of time and  confirming  the sale was correct. it  is however urged that it does not appear that  the  time was  ,-ranted  on  October 7, 1958  by  consent  of  parties because the respondents had only asked for one month’s  time and  the  court gave time for about six weeks.   It  appears however that the grant of ’time on October 7, 1958 was as  a result  of an oral compromise between the parties.  This  is quite, clear from the fact that the application under O. XXI r. 90 was withdrawn on the basis that time would be granted. The  fact that time was actually granted for six weeks  does not  mean  that  that was done without the  consent  of  the parties.  It seems to us that the whole thing took place  in the  presence of the court and the order granting time  upto November  21,  1958 must in the circumstances be read  as  a consent order.  It is borne out by the fact that on November 22,  1958  the same presiding judge of the  executing  court said that  time had been granted with the consent  of  the parties  by way of compromise.  We cannot  therefore  accept the  contention  that  time was not granted  by  consent  of parties and therefore the court had power under s.     148 to extend time which had already been granted. We,  allow  the appeal, set aside the order of  the  Letters Patent  Bench and of the District Judge and restore that  of the  executing  court dated November 22, 1958.   It  follows that the sale stood confirmed in favour of the appellant  on November   22,  1958.   We  direct  that   the   respondents (judgment-debtors)  will  pay  the costs  of  the  appellant throughout.   The money deposited by the respondent  can  be taken back by them. R.K.P.S.                                Appeal allowed.- L7 Sup/67-17-5-68-2,500-GIPF. 703

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