V K PALANIAPPA CHETTIAR Vs. RAMASAMI GOUNDER

JUDGEMENT

(1.) 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 O. 34, R. 5, C.P.C. was allowed in appeal by the Addl. District Judge, Salem.

(2.) The brief facts are that two mortgages were created by V. K. Palaniappa Chettiar (died and whose L.Rs. 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 O. 21, Rule 92, C.P.C. and the application preferred by the judgment-debtor under O. 21, R. 90 was dismissed.

(3.) Aggrieved by the order dismissing the application, moved by the judgment-debtor under O. 21, R. 90, C.P.C., 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 O. 34, R. 5, C.P.C. 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 decisions reported in (1975) 2 Mad LJ 494 (S. V. Ramalingam v. K. Rajagopal) and (1964) 1 Mad LJ 275 (Velliammal v. Subramania Iyer) for the proposition that a petition under O. 34, R. 5, C.P.C. can be entertained during the pendency of an appeal against the order rejecting the application under O. 21, Rr. 89 and 90, C.P.C. 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 O. 21, R. 90, C.P.C. but allowed the application I.A.No. 65 of 1988 moved under O. 34, R. 5, C.P.C. to set aside the sale on deposit of decretal amount.