PRITI REKHA MITRA Vs. NARAYAN CHANDRA DUTTA

JUDGEMENT

(1.) This application raises a short but an important point of procedure and substance. The point) shortly is, when does a mortgagor finally and Irrevocably lose his equity of redemption?

(2.) Before dealing with this point, I shall set out very briefly the facts. The present application is by the defendant mortgagor. The respondents to this application are the mortgagee and the purchaser. The plaintiff filed this suit against him on 19-12-1951 lor a preliminary mortgage decree for Rs. 14,521-5-6p. The preliminary mortgage decree was passed on 21-8-1952 by my learned brother J. P. Mitter, J. The preliminary mortgage decree was a consent decree providing for payment in instalments. There was default in the payment of instalments and the consent decree provided that in such default the mortgagee plaintiff would be entitled to an order for a final decree for sale of the mortgaged property. The mortgaged property is No. 3, Ram Kanta Mistry Lane, Calcutta. The final decree for sale was passed on 5-3-1954 as the mortgagor had defaulted in his payments under the consent preliminary decree. Thereafter sale reference proceeded, and on 14-5-1955 the property was sold to respondent Sakti Pada Mitter being the highest bidder at the auction for the sum of Rs. 29,200/-. On 7-6-1955 the mortgagor's solicitor wrote to the mortgagee's solicitor stating that his client would like to set aside the sale by deposit of the amount in Court. The mortgagee's solicitor responded on 8-6-1955 stating that the total amount due, both on account of principal and interest as well as on account of costs, taxed and untaxed, came up to a fiigure of Rs. 19,234-12-7p. To that figure is added an approximate cost of Rs. 2,000/-. The total dues, therefore, on the mortgage would be Rs. 21,264-12-7p. The mortgagor-applicant now wants to pay in this money. He is also prepared to pay 5 per cent of such money deposited by the purchaser to be paid as compensation to him. The applicant now wants relief and to save the mortgaged property which is his ancestral dwelling house, from passing out of his hands. In short, his application is under Order 34 Rule 5, Civil P. C.

(3.) On behalf of the respondents, the plaintiff mortgagee and the purchaser, it is contended that the sale has been confirmed by efflux of time under the Rules of this Court and, therefore, the mortgagor has lost his equity of redemption completely and irrevocably, so that he cannot now put in the money and set aside the sale. Reliance is placed, first, on Rule 89 of Chapter 26 of the Original Side Rules. It is said that that Rule lays down the procedure to discharge or vary a report made by the Registrar, it is argued that 14 clays' time is given to an applicant to discharge or vary a certificate or a report in a reference from the date of the filing of such report or certificate. Reference also is made to Rule Si) of the same Chapter which provided that unless discharged or varied in that manner, the report is conclusive evidence of the facts found there. Then Rule 92 of the same Chapter is invoked to say that the certificate or the report has become binding irv this case and except on ground of fraud, surprise or mistake or such other special ground as may be allowed by the Court, it cannot be reopened. In further aid of the argument reliance is placed on Rule 29 of Chapter 27 of the Original Side Rules which provides that the Registrar shall as soon as possible after the sale proceed to certify the result and such report shall within 8 days after the sale be filed and at the cost of the party having the carriage of proceedings. This line of argument is developed by invoking Rule 30 of Chapter 27 which states that a certificate of sale of movable property shall not be liable to objection but a certificate of the result of sale of immovable property or a certificate upon any question of title may be objected to like any other certificate or report of an officer. The argument is advanced further by reliance on Rule 31 which expressly provides :