GOPALAN NAIR Vs. KUTTY

JUDGEMENT

(1.) This petition is by the judgment - debtors in a suit on a simple mortgage. The mortgage was for Rs. 6500/-. Pursuant to the decree most of the amount has been paid by the judgment - debtors; but ultimately there was a court sale on 29-7-1957 for Rs. 402 only. On 30-8-1957 the judgment - debtors filed E.A. No. 839/1957 stating that the amount due to the decree holder on a correct calculation was Rs. 296/- only and praying that the judgment - debtors be allowed to deposit the same and have the sale set aside. The amount, namely, Rs. 296/- was tendered the same day to the advocate for the decree holder and he has recorded receipt of the same on the petition itself. As the judgment - debtors have expressed that they are ready and may be permitted to pay any deficiency in the amount, the case was posted to 2-9-1957 to ascertain whether the amount paid was anyway deficient. The petitioners state that the decree holders advocate told them that the deposit was deficient in a particular amount and that they tendered the same to the advocate for the decree holder, but he refused to accept the same and contended before court that the 30 days prescribed under O.21 R.89 C.P.C. having expired without proper deposit being made the sale had to be confirmed and that the court accepted that contention and passed an order confirming the sale. On 9-9-1957 the judgment - debtors applied for review of that order by E.A. No. 862/1957 stating that the disposal of the petition under O.21, R.89, C.P.C. was not in accordance with law as they were entitled to pay up the amount at any time before the confirmation of the sale. Even though the rule under which they were entitled to make such payment even after 30 days of the sale had not been specified in the petition, it is fairly clear that they were harping upon Order XXXIV R.5 C.P.C. which is a special provision in regard to sales in mortgage suits. Irrespective of the period lapsed after a court sale in a mortgage suit, R.5 of Order XXXIV gives liberty to the judgment - debtor to pay up the amount specified in Hub-rule (2) thereof at any time before actual confirmation of the sale. In the circumstances, the plea that such amount was tendered to the decree holders advocate before the court passed the order of confirmation merits investigation. A perusal of the order of the court below shows that the Court found fault with the judgment - debtors for not making the deposit within 30 days of the sale and had overlooked the provisions of R.5 of Order XXXIV entirely. In the circumstances, the order of the court below cannot be sustained. I set aside the same and remit the matter to the court below for investigation whether the statement by the judgment - debtors that they have tendered the amount contemplated by Order XXXIV R.5 (2) before actual confirmation of the sale to the decree holders advocate is correct. Needless to state that if such amount has been so tendered to the decree holders advocate the sale has to be set aside under the said rule The Court below will also advert to the effect of the acceptance of Rs. 296/- by the decree holders advocate as recorded on E.A. No. 839/57 in disposing of the matter.