B V MUNIRAJ Vs. CATHOLIC SYRIAN BANK LTD

JUDGEMENT

(1.) The revision is directed against the order of the first Additional Subordinate Judge, Erode in E.A.No.283 of 1984 in E.P.No.69 of 1984. The petitioners in E.A.No.283 of 1984 are the revision petitioners.

(2.) The important question that arises for consideration in this revision petition is, whether a mortgagor/defendant is entitled under Order 34, rule 5, C.P.C to deposit into court all the amounts due from him including 5% of the amount of the purchase money paid by the court auction purchaser and seek redemption of the mortgage till a formal order of confirmation of the auction sale is made by the Court or whether he is bound to deposit the money before the expiry of the period (now 10 days from the date of sale) for filing an application to set aside the auction sale or before an application to set aside the sale is finally disallowed. 2-A. The brief facts of the case necessary for the purpose of this petition are these:

(3.) The first question which arises for consideration is whether these revision petitioners have any locus standi to file the petition under Order 34, rule 5, C.P.C The contention of the auction purchaser the third respondent herein is that the sale in favour of Kandaswami Mudaliar from whom the revision petitioners herein have obtained a deed of release, in the money decree in O.S.No.321 of 1958 on 4.9.1963 was long subsequent to the mortgage suit in O.S.No.340 of 1951 in which the third respondent has purchased the fourth item on 3.7.1980 and hence the sale in favour of the said Kandasami Mudaliar cannot take precedence over the sale in favour of the third respondent herein and he has therefore no right to file this application. This contention has found favour with the court below. It is no doubt true that the court auction sale in favour of Kandasami Mudaliar in execution of the money decree in Q.S.No,321 of 1958 is long after the mortgage suit in O.S.No.340 of 1951 and hence it cannot take precedence over the sale in favour the third respondent herein in execution of the mortgage decree. But, that is not the question involved in this application. The question here is whether the revision petitioners are entitled to maintain an application under Order 34, rule 5, C.P.C. which gives a right to the defendant in a mortgage suit to redeem the mortgage by payment of the amounts due until the sale in the mortgage decree is confirmed. The right is no doubt conferred upon the defendant in the mortgage suit but under section 146, C.P.C. where any proceeding may be taken or application made by any party to a suit then the proceedings may be taken or the application may be made by any person claiming under him. It cannot be disputed that the purchaser in court-auction in execution of the money decree gets the right, title and interest of the judgment-debtor. The aforesaid Kandasami Mudaliar, who has purchased this fourth item in execution of the money decree in O.S.No.321 of 1958 against the second respondent herein, who is the mortgagor-defendant in this mortgage suit in O.S.No.340 of 1951 steps into the shoes of the second respondent-mortgagor and Is entitled to the right, title and interest of the second respondent herein. An application under Order 34, rule 5, C.P.C. is therefore maintainable by the said Kandasami Mudaliar. The aforesaid Kandasami Mudaliar claims to have purchased this fourth item in execution of the money decree in O.S.No.321 of 1958 as the agent of the revision petitioners herein and has subsequently executed a deed of release in favour of the revision petitioners. Ex.A-5 is the registered deed of release and Ex.A-4 is the registration copy thereof. Subsequent to the release, the registry has been transferred in the name of the revision petitioners as is evidenced by Ex.A-6. The revision-petitioners are, therefore, claiming under the second respondent herein, who is the mortgagor-defendant in the mortgage suit and they are therefore entitled to file this application under Order 34, rule 5, C.P.C. Advisedly, therefore, the learned Counsel for the third respondent-auction purchaser in the mortgage suit did not seriously canvass this question before me.