KALIAMMAL Vs. S A S ALAGAPPA CHETTIAR

JUDGEMENT

(1.) THIS revision is directed against the order of dismissal passed in an application, E. A. No. 313 of 1983 in E. P. No. 101 of 1977 in o. S. No. 537 of 1972 filed under Order 47, Rule 1 and Section 151, C. P. C.

(2.) THE facts which are necessary for the disposal of this revision can be briefly stated as follows: THE first respondent obtained a preliminary decree for sale of the mortgaged properties on 17. 10. 1974 and a final decree on 9. 7. 1976. In pursuance of the same, E. P. No. 101 of 1977 was filed before the Sub Judge, Madurai. THE first item of the properties was sold to the second respondent A. R. Nachiappan on 13. 12. 1982 for Rs. 35,000. In pursuance of the said sale, the second respondent deposited l/4th of the sale amount, namely, Rs. 8,775 and the matter was posted for confirmation of sale on 12. 2. 1983. THE balance of sale amount, was also deposited on 24. 12. 1982. A sum of Rs. 76,850. 07 was deposited by the counsel for the fourth defendant on 31:1. 1983 after filing lodgment schedule and obtaining chalan from court. 12. 2. 1983 and 13. 2. 1983 were holidays. Hence, it was called on 14. 2. 1983. On that day, on behalf of the fourth defendant, a petition was filed under section 151, C. P. C. stating that the amount of Rs. 76,850. 07 was already deposited under chalan No. 2144 on 31. 1. 1983 towards the decree amount, costs, poundage, sale commission, interest, etc. in full satisfaction of the entire decree and hence the entire decree was fully satisfied, that the sale has to be set aside and that the execution petition has to be closed. THE court below rejected the said application without even numbering the same and confirmed the sale holding that the balance of the purchase money and sale certificate charges were deposited on 24. 12. 1982 by the auction purchaser, that though the counsel for the fourth defendant deposited the amount of rs. 76,850. 07, no petition to set aside the sale was filed within the time and that the deposit was made after 30 days after the date of sale. Hence, the sale was confirmed and the execution petition was dismissed Aggrieved by the same, the revision-petitioners herein filed E. A. No. 313 of 1983 or review of the order dated 14. 2:1983 contending that the executing court was in error in holding that the amount was not deposited within 30 days from the date of sale and that the said deposit was after the period of limitation while there is no limitation for deposit of the amount. It was submitted that only the petition to set aside the sale under Order 21, Rule 89, C. P. C. has to be filed within 60 days and within the time the amount has to be deposited as provided under article 127 of the Limitation Act. Further, no separate petition to set aside sale is necessary, since such prayer is implied in the application for deposit of the amount which amount is payable to the decree-holder. THE application has been filed to set aside the sale on 14. 2. 1983 but it has been rejected. It was submitted that: the court has failed to note the errors and mistakes on the face of the records and if it considered it would have set aside the sale and as such they prayed for review of the order.

(3.) NEXT comes the question of limitation regarding the deposit of the sale amount. The court below held that the deposit, which was made after 30 days, though the application was filed within 60 days, is barred by limitation. In this connection, the learned counsel drew the attention of this Court to the decision reported in Thangammal v. K. Dhanalakshmi, A. I. R. 1981 mad. 254 where it was held: "where the deposit and the application for setting aside the sale under 0. 21, R. 89 was made within 60 days from the date of the sale as prescribed in Art. 127 of the Limitation Act, the application could be said to be within time. Article 127 of the Limitation Act which is a special later law prescribes the period of 60 days for making an application under 0. 21, R. 89 prevails over 0. 21, R. 92 (2) which is general earlier law which prescribes period of 30 days. The maxim generalia specialibus non-derogant (general provisions do not derogate from special provisions is applicable and therefore it cannot be said that if the deposit had not been made within 30 days from the date of the sale as per 0. 21, R. 92 (2) of the application for setting aside the sale under 0. 21, R. 89 the application cannot be maintained. " In Court Liquidator v. Bimalendu Das, A. I. R. 1985 Cal. 382 it was held that the limitation for making application and making deposit is 60 days under Order 21, Rules 89 and 92 C. P. C. read with Article 127 of the Limitation act as amended by amendment in 1976. It is clear from the above ratio that the deposit made in the instant case, which is within 60 days, is well within the time and not barred by limitation as held by the court below. In Sevugan chettiar, M. of this Court, while considering the scope of deposit of money by judgment-debtor under Order 34, Rule 5, C. P. C. before confirmation of sale, held: "it is not correct to say that the actual deposit must precede the very filing of the application in every case. There must be a deposit and that deposit should be made before the confirmation of sale. In this case, the confirmation is yet to reach the finality. So long as there is no confirmation of sale in the eye of law and the "matter is sub-judice in appeal, time is available for the judgment-debtor to make the deposit and the process of deposit could be worked out until the confirmation of the sale reaches the finality. " It is clear from the ratio laid down in the above decision that there is no time limit for deposit under Order 34, Rule 5, C. P. C. but it must be only before the confirmation of the sale. In the instant case, before the confirmation of the sale, the amount was admittedly deposited. The above view was affirmed also in the decision relied on by the learned counsel for the respondents reported in Subramama Asari v. Ramaswami Pillai, (1937)1 M. L. J. 569: 45 L. W. 486. That was also a case where a sale of a mortgage property was held and 30 days later the mortgagor put in an application purporting to be under Order 21, Rule 89 to set aside the sale, depositing the whole amount,plus 5% for the auction purchaser and costs. The court held that under Article 166 of the Limitation Act the application was not in time and dismissed it. Subsequently the petitioner filed a review petition stating that his application was not one under O. 21, R. 89, but one under O. 34, r. 5. The District Munsif held that under O. 21, R. 92, the court, in circumstances like the present as well as in general where the application had bot been put in under O. 21, Rules 89 to 91, was found to order confirmation of sale, but the High Court held: "it was wrong to hold that as the court was bound to confirm a sale after 30 days the sale automatically became confirmed after 30 days. That might be valid if the wording of 0. 21, R. 92, did not make it clear that automatic confirmation did not take place. On the other hand, 0. 21, R. 92 and Sec. 65 of the Code contemplated the passing of an order of confirmation and it was the passing of that order which made the sale absolute; so that it was not the lapse of 30 days that confirmed the sale but the passing of an order which could not be passed within 30 days. As the application was made here before the sale had been confirmed by an order, therefore under 0. 34, R. 5, the court was bound to order the mortgagee to receive the sum of money tendered and to give up the documents contemplated by 0. 34, R. 5, which supported his title. " It is clear from the above decision that if the money is tendered by the mortgagor before confirmation of sale under Order 34, Rule 5, c. P. C. , the mortgagee is bound to receive the same the sale is to be set aside and the question of the expiry of limitation in deposit is of no consequence. In the instant case in view of the fact that the deposit was admittedly made before confirmation of sale and also within the period of limitation under order 21, Rule 89, the deposit would be sufficient compliance under Order 34, rule 5, C. P. C. and I find much force in the contention of the learned counsel for the petitioners in this regard.