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PETITIONER: U.  NILAN

       Vs.

RESPONDENT: KANNAYYAN (DEAD) THROUGH LRS.

DATE OF JUDGMENT:       05/10/1999

BENCH: S.Saghir Ahmad, S.Rajendra Babu

JUDGMENT:

S.SAGHIR AHMAD, J.

     The  facts  labyrinthically  placed in the  jargon  of hosts  of applications, appeals and revisions, are summed up below.

     The   respondent  who  is  since   dead  and  is   now represented   by  his   legal  representatives  (hereinafter referred  to as ‘respondent’), had mortgaged his  properties by  deposit  of  title deeds in favour of the  appellant  in 1976.   On  January 9, 1978, the appellant filed  O.S.   No. 21/78  for  the recovery of mortgage money in the  Court  of Sub-Judge,  Thanjore.  A preliminary decree in the suit  was passed  on  10th September, 1979 for a sum of  Rs.   73,915. This was followed by a final decree passed on 21.3.1980.

     Since  the respondent did not pay the decretal  amount to the appellant, the latter, namely, the appellant filed an Execution  Application  (E.P.No.164/80) for the sale of  the hypothecated  property.   When the property was put  up  for sale  on 25.6.1981, no person was available to offer his bid and,  therefore,  E.P.No.164/80 was consigned to  record  as closed.

     The  appellant,  thereafter, filed  E.P.No.106/81  for sale  of the mortgaged properties but when this  application too  failed  to fetch bidders for the properties which  were put  up  for sale on 25.1.1982 and 25.3.1982, the  appellant himself, through another application, namely E.A.No.  88/82, sought  permission  of the court to bid at the auction  sale and  to set off the decretal amount against the sale  price. This  application was allowed on 28.4.1982.  The respondent, in  the  meantime,  filed  E.As.No.  115  and  116  of  1982 claiming   relief  under  the  Debt   Relief  Act  but   the Applications  were  rejected by the Court.  In  the  auction which  was  held on 29th April, 1982, the appellant  offered his bid in the sum of Rs.75,005/-.  The case was directed to come  up on 1st July, 1982 for confirmation of sale.  In the meantime  on  21st of June, 1982, respondent  filed  E.A.No. 151/82  under Order 21 Rule 90 read with Section 47 CPC  for setting  aside the sale held on 29.4.1982.  This Application was  contested by the appellant who indicated in his counter affidavit  that there was no irregularity or fraud committed in conducting the sale.

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     On  18th  of  September,  1982,  E.P.   No.151/82  was dismissed  in default and the sale was confirmed under Order 21 Rule 92 C.P.C.  The respondent, thereafter, filed E.A.No. 293/82   for  restoration  of   E.P.No.   151/82  which  was dismissed  in  default.  He also filed another  application, namely,  E.A.No.  294/82 for setting aside the  confirmation of  sale.   Application  for  setting  aside  the  sale  was rejected  by  the  Executing  Court   on  2.4.1983  as   not maintainable  and on the same day, E.A.No.  294/82 was  also dismissed.

     The  respondent  then filed C.M.A.  No.267/83  in  the High  Court  against the order by which E.A.No.  294/82  for setting  aside  the confirmation of sale was  rejected.   He also  filed  C.M.A.   No.   462 of 1983 in  the  High  Court against  the order rejecting the Application (E.A.  No.  293 of  1982)  for  restoration of E.A.  No.  151 of  1982.   In C.M.A.   No.   267 of 1983, respondent moved an  application (C.M.P.   7710  of 1983) for an order of interim stay  which was  granted  subject to his depositing Rs.25,000/-  in  the court  before 30.6.83.  This order was complied with and the respondent  deposited that amount in the Executing Court  on 24.6.83.

     While C.M.A.  No.  267 of 1983 and C.M.A.  No.  462 of 1983  were pending in the High Court, the respondent made an Application  (E.A.   No.  226 of 1983) in the Suit  (O.S.No. 21  of  1978)  for depositing the balance  of  the  mortgage amount  under  Order 34 Rule 5 CPC.  While this  Application was  pending,  C.M.A.  No.  267 of 1983 was allowed  by  the High  Court  by its judgment dated 21st July, 1983  and  the order  passed  by the Executing Court in E.A.  No.   294  of 1982  was  set  aside  and  the case  was  remanded  to  the Executing  Court  to hear and decide the  Application  (E.A. No.   294 of 1982) afresh after allowing the parties to lead such   evidence  as  they   considered  necessary.   In  the meantime,  by  order  dated 27th  July,  1983,  respondent’s Application  (  E.A.  No.226 of 1983) under Order 34 Rule  5 was  dismissed on the ground that it was not maintainable as the  High Court, in its judgment dated 21st July, 1983 while remanding  the  case,  had not indicated  anything  in  that regard nor had it issued any direction.  Against this order, the respondent filed C.R.P.  No.  3473 of 1983.

     C.M.A.  No.  462 of 1983 and C.R.P.  No.  3473 of 1983 were  taken  up together and the High Court by its  judgment dated  7th September, 1983, allowed both the matters with  a direction  to  the  lower  court to issue  challan  for  the deposit  of Rs.62,563/- by the respondent without  prejudice to the contentions of the parties.

     On  16th September, 1983, when the matter was taken up by  the trial court, respondent’s Application (E.A.   No.226 of  1983) was allowed and the balance amount of Rs.62,563/-, which  was directed to be deposited, was accepted and it was recorded that the mortgage was discharged.

     After remand by the High Court, E.A.  No.  293 of 1982 and  E.A.  No.  294 of 1982 were both dismissed by the trial court  on  12th  December, 1983 with the  finding  that  the respondent  had committed forgery by filing and relying upon false  documents  for which he was liable to be  prosecuted. Against  this  judgment, the respondent filed C.M.A.  19  of

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1984  and C.M.A.  74 of 1984.  While these two appeals  were pending in the High Court, the respondent filed I.A.  337 of 1984  before  the trial court for return of documents  under Order  34  Rule 5A CPC, but the application was rejected  by the  trial  court on 6th September, 1985, against which  the respondent filed C.R.P.  No.4402 of 1985 in the High Court.

     C.M.A.   No.19  of 1984 and C.M.A.  No.74 of 1984,  as also  C.R.P.  No.4402 of 1985 were taken up together by  the High  Court  and by the common judgment dated 14th  January, 1988,  C.M.A.   19  of  1984 and C.M.A.   74  of  1984  were dismissed,  but  C.R.P.  4402 of 1985 was allowed  with  the findings  :  (i) Application under Order 34 Rule 5 had  been filed  during  the pendency of the appeal in the High  Court and the High Court in that proceeding had already directed a challan  to  be  issued to the respondent to enable  him  to deposit  the  balance  of the mortgage money, which  he  did deposit   though  without  prejudice   to   the   respective contentions of the parties.  (ii) After remand, respondent’s Application  No.   226 of 1983 was allowed and  the  balance amount  of Rs.62,563/-was deposited by the respondent, which order  became  final  as  it was  never  challenged  by  the appellant.  Therefore, the Application, namely, I.A.  337 of 1984  for  return of documents, which was dismissed  by  the trial court on 6.9.1985, was liable to be allowed.

     The  High Court reversed the order of the trial  court and  allowed the Revision.  It is against this judgment that the present appeal has been filed.

     Mr.   A.T.M.   Sampath, learned counsel  appearing  on behalf  of the appellant, has contended that the application of  the  respondent for setting aside the sale  having  been dismissed  in default by the trial court and the application for restoration also having been dismissed, the sale as also its  confirmation  in  favour  of the  appellant,  shall  be treated   to  have  been  upheld  by  the  High  Court   and consequently  the application of the respondent under  Order 34  Rule 5 CPC as also the application filed under Order  34 Rule  5A  for  return  of   documents,  were  liable  to  be dismissed.   It  is  contended  that the  sale  having  been confirmed in favour of the appellant and the confirmation of sale  having  been  upheld by the High Court, there  was  no jurisdiction left in the High Court to allow the application under  Order  34 Rule 5 CPC.  It is also contended that  the High  Court passed contradictory orders.  It is pointed  out that  as  respondent’s  application for setting  aside  that order,  by which his application for setting aside the  sale was  dismissed in default, was rejected and the confirmation of sale in favour of the appellant was thus upheld, the High Court  passed  a  contradictory order that  mortgage  amount could  be legally deposited by respondent and on the  amount being so deposited, the mortgage stood discharged.

     Learned  counsel for the respondent, on the  contrary, contended  that  when the application for setting aside  the order  by  which  E.A.  No.  151 of 1982 was  dismissed  for default  was rejected, an appeal was filed in the High Court and  it  was  during  the pendency of that  appeal  that  an application  under Order 34 Rule 5 C.P.C.  was filed by  the respondent for depositing the balance of the mortgage money. This  application was ultimately allowed and the balance  of the  amount  of Rs.62,563/- was deposited by the  respondent and   consequently  the  mortgage   was   discharged.    The

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application  under  Order  34  Rule 5  C.P.C.   was  clearly maintainable  even  at  that stage.  It  is  contended  that C.M.A.   No.  267 and A.A.O.  No.  462 of 1983 were  allowed by the High Court and the case was remanded to the Executing Court  for  deciding the application of the  respondent  for setting  aside the sale afresh.  That being the stage of the proceedings,  the  application under Order 34 Rule 5  C.P.C. cannot  be  said  to  be not  maintainable.   In  fact,  the application,  it is contended, was clearly maintainable  and the Execution Court by its order dated 16.9.1983 had rightly discharged  the mortgage.  This order, it is contended,  had not  been  challenged by the appellant at any stage and  has become  final.   The appellant cannot, therefore, rely  upon the  order  dated 16.9.1983 by which the sale in his  favour was confirmed.

     In  view  of  the respective contentions made  by  the learned  counsel  for  the parties, the  question  which  is required  to be decided by us in this appeal is whether  the application  filed  by the respondent under Order 34 Rule  5 C.P.C.   was  maintainable even after confirmation of  sale. The  further  question  which is required to be  decided  is whether  an application under Order 34 Rule 5 C.P.C.   would be  maintainable  during the pendency of the appeal  against the  order  of the Executing Court by which the  application for setting aside the sale was rejected.

     Order 34 Rule 5 provides as under:-

     "XXXIV.   SUITS  RELATING  TO MORTGAGES  OF  IMMOVABLE PROPERTY.

     R.  5.  Final decree in suit for sale.

     (1)  Where, on or before the day fixed or at any  time before the confirmation of 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 ----

     (a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

     and, if necessary, ---

     (b) ordering him to transfer the mortgaged property as directed in the said decree,

     and, also, if necessary ---

     (c) ordering him to put the defendant in possession of the property.

     (2)  Where the mortgaged property or part thereof  has been sold in pursuance of a decree passed under sub-rule (3) of  this  rule,  the  Court shall not pass  an  order  under sub-rule (1) of this rule, unless the defendant, in addition to  the amount mentioned in sub-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 purchaser.

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     Where  such deposit has been made, the purchaser shall be  entitled  to an order for payment of the amount  of  the purchase-money  paid into Court by him, together with a  sum equal to five per cent thereof.

     (3)  Where payment in accordance with sub-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."

     The  provisions extracted above clearly indicate  that an application under Order 34 Rule 5 C.P.C.  can be filed or moved  by the mortgagor for the deposit of mortgage money at any time before the confirmation of sale.

     Originally, there was no provision under Order 34 Rule 5  C.P.C.   enabling the defendant to deposit  the  mortgage money  into Court at any time before confirmation of sale so as to save his property from being sold.  This provision was introduced  by the Transfer of Property (Amendment) Act  (21 of  1929)  and it was provided that if, at any time,  before the  confirmation  of  sale  made in pursuance  of  a  final decree,  the  defendant  makes  payment into  Court  of  all amounts  due from him under Sub-rule (1) of Rule 4 of  Order 34,  the  Court  shall,  on  an  application  made  by   the defendant,  pass  a  final decree and if such a  decree  has already  been passed, it would be open to the Court to  pass an order:-

     (a)  directing  the plaintiff-mortgagee to deliver  up the  documents referred to in the preliminary decree to  the mortgagor;   and, if necessary (b) directing him to transfer the  mortgaged property, as directed in the said decree and, also, if necessary,

     (c)  directing  the  plaintiff-mortgagee  to  put  the defendant  in  possession of the property.  Order 34 Rule  5 provides  the  last  chance  to the mortgagor  to  save  his property  from being passed on to the auction purchaser  and avoid  the  disturbance of his title ensuring, at  the  same time,  that  mortgage money is paid to the person  in  whose favour  the  property had been mortgaged by  depositing  the entire  amount in the Court, including the amount, where the property has been sold, contemplated by Sub-rule (2) of this Rule.    The  whole  step  has  to  be  taken   before   the confirmation of sale.

     What  is  the  meaning  of   the  phrase  "before  the confirmation  of sale" may now be considered in the light of other relevant provisions of the Code of Civil Procedure.

     Now, an application to set aside the sale can be filed under Order 21 Rule 89 C.P.C.  while another application for setting  aside  the  sale on the ground of  irregularity  or fraud  can  also  be  given under Order 21  Rule  90  C.P.C. Similarly,  if the property has been sold, it would be  open to  the  purchaser to make an application for setting  aside the  sale  on  the ground that the  judgment-debtor  had  no saleable  interest in the property sold in execution of  the decree.

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     Order  21  Rule  92(1) C.P.C.  including  the  Proviso thereto provides as under:-

     "R.92.   Sale  when  shall become absolute or  be  set aside.-  Where no application is made under Rule 89, 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.

     Provided that, where any property is sold in execution of  a decree pending the final disposal of any claim to,  or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection."

     The  above provisions indicate that if an  application is  not made either under Rule 89 or Rule 90 or Rule 91  for setting  aside  the sale, the Court would confirm the  sale. So  also, where such application is made and is  disallowed, the  sale would be confirmed.  When the "sale" thus  becomes absolute, the Court is required to grant a certificate under Order  21 Rule 94 to the person in whose favour the sale has been  confirmed  specifying  therein   the  details  of  the property sold, the name of the purchaser as also the date on which  the sale became absolute.  Once these steps have been taken  and  a certificate has been issued to the  purchaser, the  latter,  namely, the purchaser can obtain  delivery  of possession of the property sold through the court process by making  an application under Order 21 Rule 95 C.P.C.  or  if the  property  is  in  possession of  the  tenant,  symbolic possession would be delivered to him.

     Article  180  of  the Limitation Act, 1908  which  has since  been  replaced by the Limitation Act, 1963,  provided for  a  limitation of three years for making an  application for delivery of possession under Order 21 Rule 95 C.P.C.

     In  a  case which was ultimately decided by the  Privy Council,  the  question arose as to when the sale  shall  be deemed to have become absolute;  either on and from the date on  which it was confirmed or on and from the date on  which the appeal, filed against an order rejecting application for setting  aside the sale, was disposed of.  The Privy Council in  Chandra  Mani  Saha  and others vs.   Anarjan  Bibi  and others, AIR 1934 Privy Council 134, held as under:-

     "....in  construing the meaning of the words "when the sale  becomes absolute" in Art.  180, Limitation Act, regard must  be had not only to the provisions of O.21, R.92(1)  of the  Schedule  to the Civil Procedure Code, but also to  the other  material  sections and Orders of the Code,  including those  which relate to appeals from Orders made under  O.21, R.92(1).   The result is that where there is an appeal  from an   order  of  the   Subordinate  Judge,  disallowing   the application  to set aside the sale, the sale will not become absolute  within  the  meaning of Art.180,  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.

     Their Lordships, therefore, are of opinion that on the facts  of this case the sales did not become absolute within

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the  meaning of Art.  180, Limitation Act, until 17th  March 1927,  and  that  the  applications for  possession  of  the properties purchased at the auction sales were not barred by the Limitation Act."

     The  Privy  Council  confirmed the view taken  by  the Calcutta  High  Court in Chhogan Lal Bagri vs.   Behari  Lal Saha  Ray,  AIR  1933 Cal.  311 and  overruled  the  earlier judgment of that court in Neckbar Sahai vs.  Prakash Chandra Nag  Chaudhuri, AIR 1930 Cal.  86.  The effect of the  Privy Council  decision is that the sale of property, in execution of decree, does not become absolute merely on the passing of an  order confirming the sale under Order 21 Rule 92 but  if there  has  been  an appeal against an  order  rejecting  an application  for  setting aside the sale, made either  under Order  21  Rule  89 or Rules 90 or 91, the  sale  would  not become  absolute  till the disposal of that appeal.  It  was held  that  the limitation of three years  prescribed  under Article  180  of  the  Limitation Act, 1908  for  making  an application  for delivery of possession under Order 21  Rule 95  would  run,  not  from the date on  which  the  sale  is confirmed  under Order 21 Rule 92 but from the date on which the appeals are disposed of.

     This  question  was  also  considered  in  a  slightly different  situation  by the Madras High Court in  Kandukuri Chellamma  alias  Mangamma  & Anr.  vs.   Shri  Ranganilayam Ramakrishnarao,  I.L.R.  (1946) Madras 795 = AIR 1946 Madras 337.   The question in that case was 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.   The objection was that once the sale has become absolute and has been confirmed, an application to scale down the decree-debt would  not  lie.  This was rejected by the High Court  which held  that  in  view  of the pendency  of  the  appeal,  the validity  of  the sale was still in question and until  that question  was  finally decided by the High Court,  the  sale could not be treated to have become absolute particularly as the  appeal  had  to be regarded as a  continuation  of  the proceedings  initiated in the lower court for setting  aside the sale.

     In  another  Madras decision in S.V.   Ramalingam  and others  vs.  K.E.  Rajagopalan and another, 1975 (2)  Madras Law  Journal  494,  rendered  by S.Natarajan,  J.   (as  His Lordship then was), this principle was reiterated and it was held that:

     "16.   The  confirmation of a sale subsequent  to  the dismissal  of a petition under Order 21, rule 90 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 viability  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 the executing  Court

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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."

     In  another decision rendered by the Madras High Court in  V.A.   Narayana  Raja vs.  Renganayaki Achi  (died)  and others,  AIR 1984 Madras 27, it was again reiterated that an application  under  Order  34 Rule 5 would  be  maintainable during  the  pendency of the appeal filed by  the  judgment- debtor  against  an  order  passed by  the  Executing  Court refusing  to set aside the sale effected in execution of the decree  passed  in the mortgage suit.  It was  further  held that  although  as a result of the confirmation of sale  and the  issue of a sale certificate, the auction purchaser  got title  to the property and the title of the  judgment-debtor was  lost but since the sale was subject to the final result of the petition, filed by the judgment-debtor under Order 21 Rule  90  C.P.C.,  the  confirmation of sale  and  the  sale certificate  issued thereafter would also be subject to  the result  of  that  petition.   Similarly, if  an  appeal  was pending against an order refusing to set aside the sale, the whole  situation  relating  to   confirmation  of  sale  and issuance  of  sale certificate would be in a nebulous  state and  consequently it would be open to the judgment-debtor to invoke  the  provisions of Order 34 Rule 5 C.P.C.  and  make the  necessary  deposits  to save his  property  from  being transferred  to  a  third person or, may be, to  the  decree holder, in execution of decree passed in the mortgage suit.

     The  entire legal position was reviewed by this  Court in  Maganlal & Anr.  vs.  Jaiswal Industries Neemach & Ors., 1989  (3)  SCR 696, and it was held that the sale  does  not become  absolute  or irrevocable merely on passing an  order confirming  the  sale  under Order 21 Rule 92 but  it  would attain finality on the disposal of the appeal, if any, filed against an order refusing to set aside the sale.

     Mr.   A.T.M.   Sampath, learned counsel  appearing  on behalf  of  the appellant has vehemently contended that  the principles  set  out  above would not be applicable  to  the present  case  inasmuch as the appeal was not filed  by  the respondents against the order refusing to set aside the sale but it was filed against an order by which their application for   restoration  of  another   application,  namely,   the application  for setting aside the sale under Order 21  Rule 90,  which  was dismissed in default, was rejected.  He  has invited  our  attention  to the decision of  this  Court  in Hukamchand  vs.  Bansilal & Ors., 1967 (3) SCR 695, in which it was held that:-

     "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

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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."

     It was further held:-

     "A  harmonious construction of O.  XXXIV r.  5 and  O. XXI  r.  92 would make 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."

     The  first  part  of  the   above  extract  is  wholly inapplicable to the present case as it is nobody’s case that the  Court had been deliberately fixing dates after dates to avoid  confirmation of sale or to accommodate the  judgment- debtor.   The  other part of the extract is relied  upon  by both the parties, specially the respondent in support of the contention  that  the deposits under Order 34 Rule 5 can  be made and has to be made before the confirmation of sale.

     It is true that when the sale was held under the court auction,  the  respondent, in the present case, had made  an application (E.A.No.  151/82) for setting aside the sale but the  application  was dismissed in default and the sale  was confirmed.    Thereafter,  the  respondent   had   made   an application  (E.A.No.   293/82)  for   restoration  of  that application.   They  had also made an  application  (E.A.No. 294/82)  for setting aside the confirmation of sale but both these  applications  were rejected and it was against  these orders  that  the  respondent had filed  appeals  (C.M.A.No. 267/83  and  C.M.A.No.462/83)  in the High  Court.   It  was during the pendency of these appeals that the respondent had made  an  application under Order 34 Rule 5 for  deposit  of money.   The  situation  where an appeal is  filed  directly against  the order dismissing an application under Order  21 Rule 90 is not different from the situation where the appeal is  filed  against the order dismissing that application  in default  inasmuch  as  in  both the situations,  it  is  the validity  of confirmation of sale, which is involved and  is under possible jeopardy.

     An identical situation with which we are faced in this case  was  considered  by the Madras High  Court  itself  in Varadarajan  vs.  Venkatapathy Reddy, (1953) 1 M.L.J.   148, in  which the appeal was filed against an order by which the application  under Order 21 Rule 90 C.P.C.  was dismissed in default.   It  was held that restoration of the  application under  Order 21 Rule 90 C.P.C.  would automatically  operate to  vacate,  or,  render   ineffective,  the  earlier  order confirming  the sale under Order 21 Rule 92.  The High Court was  of  the opinion that pendency of an  application  under Order  21 Rule 90 C.P.C.  would operate as a bar to an order of  confirmation of sale being made under Order 21 Rule  92. It   was  further  of  the   view  that  restoration  of  an application under Order 21 Rule 90 C.P.C., which was earlier dismissed  for  default, would relegate the parties  to  the earlier  position and the application for setting aside  the sale would be treated as pending and not disposed of despite the confirmation of sale in the interregnum.

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     In  Ramathal  vs.   Nagarathinammal, (1967)  1  M.L.J. 260,  the above view was reiterated and it was held that the restoration  of an application under Order 21 Rule 90, which was  earlier dismissed in default, would render  ineffective the order by which the sale was confirmed.

     The  Andhra  Pradesh High Court in  Satyanarayana  vs. Ramamurthi,  (1960)  2  An.W.R.  430, held that it  is  only where  no application under Order 21 Rule 90 is made  within the  statutory  period or where such an application is  made but  is  rejected that the Court can exercise its  power  to confirm  the sale.  It further held that the existence of an application  for  setting aside the sale would operate as  a bar  in making the sale absolute.  It also held that  during the pendency of the appeal, no finality attaches to the sale notwithstanding the confirmation of sale having been made in the meantime.

     Mr.   A.T.M.  Sampath then pointed out that even after remand  by  the High Court, both the  applications,  namely, application  for  restoration  as also the  application  for setting  aside  the confirmation of sale were  dismissed  on 12.12.1983 and the appeals filed against those orders, being C.M.A.   No.19 of 1984 and C.M.A.  No.74 of 1984, have  also been dismissed by the impugned judgment with the result that the  objections  under  Order 21 Rule 90  C.P.C.   shall  be treated   to  have  been  dismissed   on  merits,  and   the confirmation  of  sale in favour of the appellant  shall  be treated  to  have been validly done.  It is  contended  that once the order, by which the sale was confirmed in favour of the  appellant,  is found to have been validly  passed,  the title  in  the  property passed in favour of  the  appellant while the title of the respondent, from that moment, came to an  end.  The consequence of this situatiuon, it is  further contended,  was  that the application under Order 34 Rule  5 C.P.C.   for  deposit of money was not maintainable and  was liable  to  be rejected.  It was not open to  the  Executing Court  to  have  accepted the deposit or to have  passed  an order for return of document.

     Having  given  our  anxious   consideration  to  these submissions,  we  are  unable  to accept them  not  only  on equitable considerations but on the merits of the case also.

     Adversity  of a person is not a boon for others.  If a person  in stringent financial conditions had taken the loan and   placed  his  properties  as  security  therefor,   the situation cannot be exploited by the person who had advanced the loan.  The Court seeks to protect the person affected by adverse  circumstances from being a victim of  exploitation. It  is  this  philosophy which is followed by the  Court  in allowing  that person to redeem his properties by making the deposit under Order 34 Rule 5 C.P.C.

     We  may, at this moment, recapitulate the facts  which have already been given above.

     In  this  case,  the sale was held on 29th  of  April, 1982.   The respondent made an application on 21st of  June, 1982  for  setting aside the sale but this  application  was dismissed in default on 18.9.1982.  Thereafter, the sale was confirmed.   This  compelled  the   respondent  to  make  an application  for  setting  aside the confirmation  of  sale. They  also  made  an application for  restoration  of  their

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earlier  application under Order 21 Rule 90 C.P.C.  Both the applications  were made on 12.10.1982 but they were rejected on 2.4.1983 against which, as pointed out earlier, C.M.A.No. 267/83  and C.M.A.No.  462/83 were filed.  In these appeals, the   respondent  also  moved   an  application   (C.M.P.No. 7710/83)  for  stay  and the High Court  passed  conditional order  of stay by directing the respondent to deposit a  sum of  Rs.25,000/-  in  the  Executing   Court  on  or   before 30.6.1983.    The  respondent  deposited   the   amount   on 26.6.1983.   While  these appeals were pending in  the  High Court,  the respondent made an application (E.A.No.  226/83) in  the  original suit for deposit of money under  Order  34 Rule 5.

     C.M.A.No.   267/83  was allowed by the High  Court  on 21.7.1983 by the follwing order:-

     "Appellant came forward with a claim that on 12.9.1982 he  was afflicted with chicken pox and this was preceded  by fever  for  two  days.   Court   below  held  that  when  no prescription  issued  by  a  doctor  or  any  bill  produced regarding  purchase  of  medicines,  this  claim  cannot  be accepted, though for chicken pox there are no medicines.

     Learned  counsel  for the respondent would state  that appellant  herein  indulges in protracting the  proceedings, and  at every stage he deliberately allows the matter to  be dismissed   for  default  and   thereby  prevents  an  early conclusion of proceedings.

     On  behalf of appellant, it is pleaded that a bonafide impression  was  entertained that by filing such  affidavit, the  matter  could be successfully concluded, but since  the court below had approached the matter differently by stating that no other evidence had been adduced, if only it had been indicated  by  Court  that this matter calls  for  oral  and documentary  evidence to be adduced as well, then  appellant would  have  adduced the necessary evidence.  Therefore,  to enable  the  appellant to establish the truthfulness of  the claim  made,  the matter is now remitted, for him to  adduce such  evidence as he may choose to give, thereafter for  the court  below  to  pass suitable  orders.   Accordingly,  the C.M.A.   is allowed.  No costs.  It is open to both  parties to  adduce  such oral and documentary evidence as  they  may consider  necessary,  and  the enquiry is  to  be  completed positively, on or before 31.8.1983.

     It  is  stated that pursuant to the Orders  passed  in C.R.P.  No.2251 of 1983, the premises is kept under lock and key.  Since respondent herein is prevented from enjoying the property  in spite of securing an order for confirmation  of sale,  the premises will continue to be kept under lock  and key as per the orders passed in the above C.R.P., subject to an  added  condition that appellant herein shall deposit  by the 10th of every succeeding month to the credit of the E.P. a  sum  of Rs.300/- per month into the court below,  failing which, it will be open to the Court below to proceed to pass suitable orders.

     Sd/- July 21, 1983."

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     The  trial court, in the meantime, by its order  dated 27.7.1983  rejected  the respondent’s  application  (E.A.No. 226/83)  for  permission  to  deposit  the  balance  of  the mortgage  money under Order 34 Rule 5 C.P.C.  against  which C.R.P.No.   3473/83  was  filed  in the  High  Court.   This Revision  Petition  as also C.M.A.No.  462/83 were taken  up together  and  disposed  of  by   a  common  judgment  dated 7.9.1983.   The  Revision Petition and the appeal both  were allowed.  The judgment, inter alia, provided as under:-

     "It  is  stated  that in respect of orders  passed  in E.A.No.293  of 1982 which was filed to set aside the  orders passed  in E.A.No.151 of 1982 and which in turn was filed to set  aside  the sale, C.M.A.No.262 of 1983 is filed to  this Court.   In  the  light  of the  orders  already  passed  in C.M.A.No.267  of  1983  and the entire  matter  having  been reopened,  both  the  appeal and the revision  petition  are allowed  with  costs with a direction to the court below  to dispose  of  the connected E.As.  along with  E.A.No.294  of 1982, which is being presently enquired into.

     It is stated that the court below did not issue chalan for  remittance  of Rs.62,563/-Now that the matter has  been reopened,  the  court below is directed to  issue  necessary chalan  for the amount to be deposited but without prejudice to  the contentions of parties.  If by the date of  deposit, it  is  open  to  the Judgment debtor to  deposit  the  high amount.   On production of the Steno copy of this order, the court below shall proceed further in the matter.

     Sd/- 7.9.1983."

     A  perusal of the portion of the order extracted above would  show  that  the whole matter was  reopened  with  the result that the confirmation of sale could not be treated as final and it was open, even at that stage, to the respondent to deposit the balance of the mortgage money.

     Thereafter,  the  trial  court,  by  its  order  dated 16.9.1983,  allowed E.A.No.  226/83 and accepted the balance of  the mortgage money amounting to Rs.62,563/-.  The  trial court  discharged  the  mortgage.  It is  contended  by  the learned  counsel  for  the respondent that  this  order  has become  final  as  it was, at no stage,  challenged  by  the appellant.   But  the matter does not end here.   The  trial court,  in  the  meantime, by its  order  dated  12.12.1983, dismissed   E.A.Nos.   293/82  and   294/82  against   which C.M.A.No.   19/84 and C.M.A.No.74/84 were filed in the  High Court.  It also, by its order dated 16.9.1984, dismissed the respondent’s   application   (I.A.337/84)   for  return   of documents under Order 34 Rule 5A C.P.C.  Against this order, C.R.P.No.  4402/85 was filed in the High Court.

     C.M.A.No.19/84,  C.M.A.No.74/84 and C.R.P.4402/85 were disposed  of  by the High Court by a common  judgment  dated 14.1.1988  by  which C.M.A.Nos.19 and 74 of 1984  have  been dismissed  while  C.R.P.No.4402/85  has been  allowed.   The judgment  apparently is self-contradictory.  While rejecting C.M.A.Nos.19/84   and   74/84,  the   High   Court   allowed C.R.P.No.4402/85  and  has  held  that  the  mortgage  stood discharged.   The  relevant  portion  of  the  judgment   is reproduced below:-

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     "24.   I am afraid that the above said principles  are not applicable to the facts of the present case, since there is  no  foundation  for  holding that the  order  passed  by Sathiadev, J., was obtained by fraud and the matter is being raised for the first time before this Court.  It is no doubt true  that  the  conduct of the petitioner in  adopting  all sorts  of dilatory tactics in delaying the execution of  the decree has to be condemned.  But that will not be sufficient to  ignore the order passed by the Court on the basis of the alleged  fraud.  Therefore, I find that the order passed  by the  lower Court in I.A.No.337 of 1984 in O.S.No.21 of  1978 is  not sustainable.  As already observed, the order  passed by  the  lower  Court  in E.A.No.226 of  1983  has  given  a complete  discharge of the mortgage decree and  consequently the petitioner is entitled to get return of the documents as prayed for in I.A.No.337 of 1984.

     25.   In the result, this revision petition is allowed and the order of the lower Court is set aside.  No costs."

     The  High  Court endorsed the view of the trial  court that  on  the deposit of the balance amount of the  mortgage money,  the  mortgage  stood discharged.   The  Trial  Court having  also  allowed the application of the respondent  for return of documents under Order 34 Rule 5A C.P.C., there was no  occasion for the High Court to have dismissed C.M.A.Nos. 19 and 74/84.

     Mr.   A.T.M.   Sampath  has   contended  that   having dismissed  C.M.A.Nos.19 and 74/84, the High Court should not have allowed C.R.P.No.4402/85 nor should have it allowed the respondent’s  application under Order 34 Rule 5A for  return of  documents.  He is, to that extent, right.  But once  the balance  of  the mortgage money was allowed to be  deposited under Order 34 Rule 5 and the documents were also ordered to be  returned  under Rule 5A, with the consequence  that  the mortgage was treated as discharged, the obvious conflict can be  removed  by  allowing both the appeals,  namely,  C.M.A. Nos.   19 and 74 of 1984, which are hereby allowed, so as to bring  in harmony the earlier part of the judgment with  the latter  part.   The  objection that the respondent  had  not filed  any  appeal  in this Court against that part  of  the judgment  of the High Court by which C.M.A.  Nos.  19 and 74 of  1984  were  dismissed,  cannot  be  entertained  as  the principles  contained in Order 41 Rule 33 can be invoked  in the  instant  case so as to do complete justice between  the parties.   For the reasons stated above, we find no merit in this  appeal which is hereby dismissed with the  observation that the amount deposited by the appellant from time to time in the High Court or any other Court, in this case, shall be refunded  to him together with all interest accrued thereon. There shall be no order as to costs.