RAMASAMI GOUNDER Vs. V K PALANIAPPA CHETTIAR

JUDGEMENT

(1.) THIS revision is directed against the order passed in I.A. No. 65 of 1988 C.M.A. No. 78 of 1982. The auction purchaser is the petitioner herein. On the foot of two mortgages executed by V.K. Palaniappa Chettiar and another, O.S. No. 863 of 1973 was filed to recover the mortgage amount. In the said suit, a preliminary decree was passed on 22.12.1973 and a final decree was passed on 3.7.1974. In R.E.P. No. 45 of 1980 in O.S. No. 863 of 1973, the properties belonging to the judgment-debtors were brought for sale and sold in the court auction in favour of the petitioner herein 9.10.1980. The judgment-debtors filed R.E.A. No. 1222 of 1980 to set aside the sale held on 9.10.1980. But that petition was dismissed on 19.7.1982. As against the order passed in R.E.A. No. 1222 of 1980, C.M.A. No. 78 of 1982 was filed by the judgment-debtors and during the pendency of the said appeal I.A. No. 65 of 1988 was filed under Order 34, Rule 5 of C.P.C. for permission to deposit the amount due to the creditor so as to enable the judgment-debtors to redeem the mortgage property. While disposing of I.A. No. 65 of 1988 and C.M.A. No. 78 of 1982, the appellate court held as under: ?During the pendency of such appeal, the mortgagor could deposit the amount. Accordingly, in this case, judgment-debtor has deposited the amount due in I.A. No. 65 of 1988 and though C.M.A. is dismissed, however petition I.A. No. 65 of 1988 is allowed and sale is set aside for the reasons stated in the application. There will be no order as to costs.? Consequently, in the decree passed in I.A. No. 65 of 1988 in C.M.A. No. 78 of 1982 the District Court held that ?the sale held as on 9.10.1980 in R.E.P. No. 45 of 1980 in O.S. No. 836 of 1973 be and hereby set aside and that there be the costs in this petition.?

(2.) IT is against the order passed in I.A. No. 65 of 1988, the present revision has been preferred by the auction-purchaser.

(3.) ACCORDING to Order 34, Rule 5, C.P.C. after the dismissal of an application under Order 21, Rule 90, and before confirmation of sale, if the judgment-debtor pays the necessary amount and applies to have the sale set aside, the court under Order 34, Rule 5, as amended must set aside the same, notwithstanding that the applicant by his own acts and monoevures prevents the confirmation of the sale for a long period. In a sale held in pursuance of Rule 5, the stranger auction-purchaser acquires the right of the mortgagee and also of the mortgagor and it cannot be said that the right of redemption remains in the mortgagor after sale or in any event after confirmation thereof. ACCORDING to the facts arising in the present case, the preliminary decree was passed on 22.12.1973 and the final decree was passed on 3.7.1974. The property was sold in court auction on 9.10.1980. The petition was filed under Order 21, Rule 90, on 19.7.1982. The court auction sale was confirmed on 11.3.1981. But the application I.A. No. 65 of 1988 under Order 34, Rule 5, was filed during the pendency of the appeal C.M.A. No. 78 of 1982. Therefore, in the present case, the petition under Order 34, Rule 5, was not filed before the confirmation of the sale. ACCORDING to the judgment-debtors/respondents herein, during the appeal stage an order passed in a petition filed under Order 21, Rule 90, C.P.C. would be in a nebulous stage and therefore if the order passed in a petition filed under Order 21, Rule 90, is set aside in the appeal, then that would enable the judgment-debtors to press for an order on the petition filed under Order 34, Rule 5, C.P.C. In order to support this line of arguments, reliance was placed on the decisions reported in the case of M. Shaik Ali and another v. State Bank of India, Nagercoil 97 L.W. 483 in the case of S.V. Ramalingam and another v. K. Rajagopalan and another 1975 (2) MLJ 494 = 88 L.W. 477 and the case of Valliammal v. Subramania Iyer 1964-I-MLJ 275. On the other hand, in order to support his contention that a petition under Order 34, Rule 5, C.P.C. would not lie after confirmation of the sale, the learned counsel for the petition herein relied upon a decision of the Supreme Court in the case of Hukamchand v. Bansilal & Ors. 1968 S.C. 86 and a recent decision of this court in the case, of N. Krishnamoorthy v. N.M.A.R.H.R. Chettiar AIR 1992 Mad. 200.