M SEVUGAN CHETTIAR Vs. V A NARAYANA RAJA

JUDGEMENT

(1.) In these letters patent appeals, the question which has arisen for consideratiou relates to the scope of, the contingency under which and the conditions on satisfaction of which, the power of Court is to be exercised under Order 34 rule 5 of the Code of Civil Procedure, hereinafter referred to as the Code, To assess the question raised and to express an opinion thereon, it has become necessary to trace the facts of the case. We are obliged to refer to the parties as they stood arraye in C.M.P. No 16308 of 1982 in C.M.A. No 532/77 against the orders in which these letters-patent appeals have been preferred, which array is more or less similar in the Civil Miscellaneous Appeal itself. In 1963, two items of properties were the subject-matter of mortgage by Narayana Raja, ths petitioner, to and in favour of one Meyyappa Chettiar, who is no more. Ranganayaki Achi, the first respondent, who died subsequently, and Sevugan Chettiar, the second respondent, were countenanced as the legal representatives of Meiyappa Chettiar. On the death of Ranganayaki Achi herself Sevugan Chettiar, the second respondent and Ramiah Chettiar, the seventh respondent, have been countenanced as her legal representatives. The suit, O.S. No. 166 of 1965 on the file of the Subordinate Judge, Madurai, was filed in enforcement of the mortgage by the original mortgagee and a preliminary decree was passed in the suit on 29th June, 1966. A final decree ensued on 28th February, 1967. Execution was prosecuted by the original mortgagee-decree-holder in E.P. No. 119 of 1967 for sale of the properties. The decree-holder seemed to have died snbsequently and the execution was prosecuted by his legal representatives, The execution petition was posted for disposol on 22nd Decembar, 1967. However, it was advanced on 1st December, 1967 and posted to 2nd December, 1967 when the executing Court directed the sale of the properties to be held on 22nd January, 1968. The sale was actually held on 23rd January, 1968 and item No. 1 was sold in favour of Natarajan Chettiar, the fifth respondent and item No. 2 of the properties was sold in favour of Ramaswami Chettiar, the sixth respondent. The petitioner, the defendant/judgment-debtor, filed E.A. No. 157 of 1969 under Order 21, rule 90 of the Code for setting aside the Court auction sale. Despite the filing of the application to set aside the sale, the executing Court co nfirmed the sale and possession was taken. Ultimately E.A. No. 157 of 1969 was dismissed on 16th August, 1976. As against the decision in E.A. No. 157 of 1969, the petitioner preferred C.M.A. No. 532 of 1977. Earlier, the civil miscellaneous appeal was allowed by this Court on 5th March, 1981, and the sale in favour of respondents 5 and 6 was set aside. S.N.S. & Co., Dindigul, the third respondent who is stated to be a puisne mortgagee, and the legal representatives of the first respondent, who seemed to have died subsequently, filed petitions to set aside the order of this Court in C.M.A. No. 532 of 1977. This Court allowed these petitions and as a result C.M.A. No. 532 of 1977 has been restored to be heard in respect to the third respondent and the legal representative of the fifth respondent. At this stage, the petitioner has filed the petition, C.M.P. No.l6308 of 1982 under Order 34 rule 5 of the Code, seeking permission to deposit the amounts due under the decree. The petition was opposed by the third respondent and the legal representatives of the fifth respondent on two grounds. One is, the sale was confirmed long prior to the filing of the application and hence, Order 34, rule 5 of the Code cannot be invoked, and the second, is, there has been no deposit into Court of the amounts due under the decree within the meaning of Order 34, rule 5 of the Code and the petitioner only sought a direction to deposit and this would not suffice for the purpose of Order 34, rule 5, Ramanujam, J., who heard the petition, repelled both the above contentions, allowed the petition and permitted the petitioner to deposit the amounts before the trial Court and the trial Court was directed to go into the question of the sufficiency or otherwise of the amounts deposited for the purpose of redemption. As stated above, these letters patent appeals are directed against the orders of the learned Judge in C.M.P. No. 16308 of 1982, and the appellants are the various respondents in C.M.P. No. 16308 of 1982.

(2.) Before us, Mr. R. Krishnamurthy, learned Advocate-General, advancing arguments in common for all the appellants, urged the very same contentions that were put forth before the learned single Judge. Order 34, rule 5 enables the judgment debtor to make payment into Court of all the amounts due from him under the preliminary decree in a suit for sale on or before the day fixed, obviously under ruie 4 of Order 34 or at any time before the confirmation of the sale after a final decree is passed under sub-rule (3) of rule 5 of Order 34 In the present case, the final decree had been passed on 28th February, 1967 as narrated when recapitulating the facts of the case. Hence, the question is whether the petitioner could be enabled to make the deposit on the ground that such deposit is before the confirmation of the sale We feel obliged to extract Order 34, rule5 as follows with the amendment in this State so far as sub-rule (3) is concerned, so that the relevant provision may stand adumbrated in this judgment itself:

(3.) In Venkata Narasimhan v. Nagojirao1 a Bench of this Court, consisting of Horwill and Koman, JJ., dealt with a case where the very application under Order 34, rule 5 was dismissed for default and thereafter the sale was confirmed. That application was restored and the Bench countenanced that the effect of setting aside the order of dismissal for default operated automatically to set aside the order of confirmation of the sale.