M SEVUGAN CHETTIAR Vs. V A NARAYANA RAJA

JUDGEMENT

(1.) In these Letters Patent Appeals, the question which hits arisen for consideration relates to the scope of the contingency under which and the conditions on satisfaction of which the powers of court to be exercised under O. XXXIV R. 5 of the Civil P. C. 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 arrayed in CMP 16300 of 1982 in CMA 532 of against the orders in which these Letters Patent Appeals has been preferred, which array is more or less similar in the civil miscellaneous appeal itself. In 1903 two items of properties were the subject matter of mortgage by Narayana Raja the 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 Meyvappa Chettiar. On the death of Ranganavaki Achi herself. Sevugan Chettiar, the second respondent anti Ramiah chettiar, the seventh respondent. have been countenanced as her legal representatives. Tile suit O. S. 106 of 1965 oil the file of the Subordinate Judge Madurai, was filed in enforcement of the mortgage by the original mortgagee and preliminary decree was passed in the suit on 296-1966. A final decree ensued on 28-2-1967. Execution was prosecuted by the original mortgagee decree-holder in E.P. 110 of 1967 for the sale of tile properties. The decree-holder seemed to have died subsequently and the execution was prosecuted for his legal representatives . The execution petition was posted for disposal on 22-12-1967. However, it was advanced on 1- 121967 and posted to 2-12-1967, when the executing court directed the sale of the properties to be held on 22-1-1968. The sale was actually held on 23-11968 and item No. I was sold in favour of Natarajan Chettiar, the fifth respondent and item No. 2 of the properties was sold in favour of Ramaswarni Chettiar, the sixth respondent..The petitioner, the defendant judgment-debtor, filed E. A. 157 of 1969 under O. XXI 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 confirmed the sale and possession was taken. Ultimately E. A. 157 of 1969 was dismissed on 16-8-1976. As against the decision in E. A. 157 of 1969. the petitioner preferred C. M. A. .532 of 1977. Earlier. tile civil miscellaneous appeal was allowed by this court on 5-3-1981 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 tile fifth respondent, who seemed to have died subsequently, filed petitions to set aside the order of this court in CMA 532 of 1977. This Court allowed these petitions and as a result CMA 532 of 1977 has been restored to be heard in respect of the interest of the third respondent and the legal representatives of tile fifth respondent, At this stage, the petitioner has filed the petition C. M. P. 16308 of 1982 under 0. XXXIV R. 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,O.XXXIV R. 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 O. XXXIV R. 5 of the Code, and the petitioner only sought a direction to deposit and this would not suffice the purpose of O. XXXIV R. 5. Ramanujam. J. who heard the petition, repelled both the above contentions allowed the petition and permit(ed the petitioner to deposit the amount 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. 16308 of 1982, and the appellants are the various respondents in C. M. P. 16308 of 1982.

(2.) Before us, Mr. R. Krishnamurthi, 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 XXXIV R. 5 enables the judgment-debtor to make payment into court of all the amounts due from him under tile preliminary decree in a suit for sale on or before the day fixed obviously under R. 4 of O. XXXIV or at any time before the confirmation of the sale after a final decree is passed under Sub-r.(3) of R. 5 of O. XXXIV. In the present case the final decree had been passed on 28-2-1907, as narrated when recapitulating the facts of the case, Hence, the question is whether the petitioner Could be enabled to make tile deposit on the ground that Such deposit is 'before the confirmation of the sale'. We feel obliged to extract O. XXXIV R. 5 as follows, with the amendment in this State, so far as sub-r(3) is concerned, so that the relevant provision may stand adumbrated in this judgment itself :

(3.) 0. XXI R. 92 speaks about as to when the sale will become absolute and it reads as follows - "Sale when.to become absolute or be set aside. - (1) Where an application is made under R. 89, R. 90 or R. 91, or where such application is made and disallowed, the court shall make an order confirming the safe, and thereupon the sale shall become absolute."