SUBBA RAO Vs. B SURYAPRAKASH RAO

JUDGEMENT

(1.) The petitioner is the decree-holder/auction-purchaser. He filed O. S. No. 5 of 1972 on the file of the Subordinate Court, Tedepalligudem, West Godavari District on the foot of a mortgage executed by the first respondent-defendant on 21st January, 1962, hypothecating Acs. 8.00 of land of Appapuram village, West Godavari District. The principal sum advanced was a sum of Rs. 23,181-25. During these ten years the defendant must have made several payments. But that was never enough to make even a dent into the principal loaned. In the suit, a preliminary decree was passed on 30th of August, 1973, against the defendant for a sam of Rs. 26,120-89. The Court gave time for payment of this decretal amount upto 30th of October, 1973. But the defendant - farmer coutd not pay that amount and did not pay that amount. After the matter went up in appeal and came down to the trial court, the court passed in LA. No. 392 of 1977 final decree on 30th of January, 1978. Seeking the sale of the mortgaged property and execution of the decree, the plaintiff filed E. P. No. 84 of 1980. Acting on that E.P. the lower court ordered sale of the property on 17th ot March, 1983. The decree-holder obtained permission of the court and bid in the auction and became the highest bidder for Rs. 1,21,000/-. The auction-purchaser deposited Rs. 90,000/- towards the sale price and asked for confirmation of sale. That application for confirmation was not ordered till 17th of March, 1987. On 17th of March, 1987, the defendant-judgment-debtor filed E.A No. 85 of 1987 under Or. 34 R. 5 CPC and deposited all the amounts due to the auction purchaser under the decree and asked for the return of his documents and setting aside the sale. The lower court allowed this application filed by the defendant on 31-3-1987 and directed the plaintiff/auction - purchaser to return the documents to the judgment-debtor. The one single fact on which the lower court made the aforesaid order against which this CRP has been filed is that till the date of filing of the application under Order 34 Rule 5 CPC by the defendant, the sale of the mortgaged property was not confirmed. It was on those facts the lower court uphold the right of the defendant to redeem the mortgage under Order 34 Rule 5 CPC by the defendant. In doing so, the lower court followed a j udgment of this court reported in V. Ramakrishna vs. R Hemalatha Devi, delivered by my learned brother Seetharan. Reddy, J. It is against the above order of the lower court dated 31st of March, 1987, the present CRP has been tiled by the plaintiff/auction-purchaser.

(2.) The question that arises for consideration of this Court in this case is whether the order passed by the lower court is within its competence under the parameters of Order 34 Rule 5 CPC. Order 34 Rule 5 CPC reads as follows : "Final decree in suit for sale : (1) Where on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into court of all amounts due from him under sub-rule (1) of Rule 4, the court shall, on application made by the defendant in this behalf, pass a final decree or if such decree has been passed, an order : (a) Ordering the plaintiff to deliver up the documents referred to in the preliminary decree and if necessary. (b) ordering him to transfer the mortgaged property as directed in the said decree and also if necessary. (c) ordering him to put the defendant in possession of the property. (2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the court shall not pass an order under sub-rule (1) 01 this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1) deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into court by him, together with a sum equal to five per cent thereof. (3) Where payment in accordance with sub-rule (1) has not been made, the court shall on application made by the plaintiff in this behalf pass a final decree directing that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4.'' The lower court found as a fact that though sale was held on 20th of June, 1983, confirmation was not made till 31st of March, 1987. On that basis it applied the law contained in Order 34 Rule 5 CPC and directed the return of the documents. The lower court disregarded the complaint of the auction-purchaser that the conduct of Hie defendant was responsible for the court's failure to confirm the sale. A reading of Order 34 Rule 5 CPC shows that it knows no such objection. Under Order 34 Rule 5 CPC it is open for the defendant to seek the remedy of redemption under that provision till the sale was confirmed. The courts have generously interpreted this provision in favour of the mortgagor by firmly holding that for the purpose of this Rule 5 of Order 34, no implied or deemed confirmation of sale will do and that the postponement of confirmation even if it was brought about by the wicked conduct of the defendant is no ground for refusing aid and help to the defendant under Or. 34 Rule 5 CPC. Cases illustrative of the above legal position have been so fully surveyed recently by my learned brother Seetharam Reddy J., in the abovementioned decision of V. Ramakrishna vs. B. Hemalatha Devi (Supra) that no useful purpose, I think, would be served by my recapufulating those decisions here. I only say that 1 respectfully agree with the decision of my learned brother Seetharam Reddy. J.

(3.) But it is argued by Sri Surya Prakash Rao with a degree of passion which is not wholly unworthy of the mortgagee's avarice to grab Acs. 8.00 of valuable agricultural land of the farmer which is easily worth several times more than price it fetched in the auction that the defendant's application filed under Order 34 Rule 5 ought to have been dismissed on the ground that it was barred by Article 127 of the LIMITATION ACT, 1963. This point did not arise before Seetharam Reddy, J. The learned counsel draw my attention to Article 127 of the LIMITATION ACT, 1963 which allows a mere thirty days for setting aside a sale in execution of a decree. If Article 127 applies to the facts of this case, the learned counsel's argument must be upheld. But luckily for the farmer the Courts have always held that the law of limitation contained in the LIMITATION ACT, 1963 does not govern the pursuit of remedy under Or. 34 Rule 5 CPC. That was the subject matter of a few reported cases. A provision of the LIMITATION ACT, 1963 of 1908 which corresponds to the present Article 127 of the LIMITATION ACT, 1963 was similarly pressed into service for a similar purpose of defeating the claims of the mortgagor in Subramaiiia vs. Ramaxwamy. But. Horwill J., had repelled those contentions of the auction-purchaser. The learned Judge observed, "if therefore Order 34 Rule 5 gives a time other than that provided by Article 166, the special provision must prevail." The Madras High Court also held in the same CMS.: that Order Rule 5 CPC is such a special provision. This view of the inapplicability of the LIMITATION ACT, 1963 to Order 34 Rule 5 CPC is endorsed and approved by the Calcutta High Court in Gourchand vs. Pradyumna Kumar. I readily follow those decisions which are, in my opinion, in consonance with the social philosophy of shielding the needy debtor's immoveable property from the grasp of the avaracious money-lender. In the ease of farmer those provisions save the farmer's agricultural lands from the clulche; of the money-lenders. I accordingly reject this objection of the learned counsel for the mortgagee.