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CASE NO.: Appeal (civil) 5073  of  1993

PETITIONER: V.K. PALANIAPPA CHETTIAR (DEAD) BY LRS.

       Vs.

RESPONDENT: RAMASAMI GOUNDER & ANR.

DATE OF JUDGMENT:       17/04/2001

BENCH: D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

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BRIJESH KUMAR, J.

   This  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.

   The  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 .

   Aggrieved 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. The  learned  Appellate  Court   placed  reliance  upon  two

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decisions  reported  in  2  M.L.J.    1975  page  494  (S.V. Ramalingam  and another vs.  K.  Rajagopal and another)  and 1964  1  M.L.J.  Page 275 (Velliammal Vs.  Subramania  Iyer) 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.

   The   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.

   To  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.

   In   the  present  case,   undisputedly,  the  sale  was confirmed  and was made absolute under Order 21 Rule 92 CPC. It  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

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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:-

   5.   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

   (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.

   Where,  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.

   (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.

   A  perusal  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).

   In  the  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

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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:-

   14.   In 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.

   Reliance  has also been placed upon two recent decisions of  this Court one of which is reported in (1999) 8 SCC  511@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ [U.  Nilan vs.  Kannayyan (Dead) through LRs.].  Considering@@ JJJJJJJJJJJJJJJJJJJJJJJJJ 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.

   Learned  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

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   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.

   Learned  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. Thereafter,  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.

   It   has  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. On the 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  appeal  No.78/82. Had  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. since  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

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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@@     IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 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.

   As  a  result of the discussion held above, we  find  no merit  in the appeal and it is accordingly dismissed.  Costs@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ easy.