Chellappa Chettiar and Others vs T.P. Kalyanasundaram and Others

Ganapatia Pillai, J.—C. M. A. No. 137 of 1960 is directed against the order of the Subordinate Judge of Tanjore allowing the application

made by the judgment-debtor in a mortgage decree under Order 34 rule 5 to receive the amount deposited into court. C. M. A. No. 138 of 1960

is preferred against the order of the Subordinate Judge consequent upon the order made by him in the application made under Order 34 Rule 5

setting aside the sale in question and the C. R. P. is directed against the first order on the footing that if no appeal was competent the order was

liable to be revised. The short facts necessary to understand the case are these. The first respondent in both the C. M. As. obtained a mortgage

decree on the foot of a mortgage in O. S. No. 58 of 1955 on the file of the Sub-Court, Tanjore. The preliminary decree was passed on 18-11-

1955. The amount directed to be deposited by the preliminary decree not having been deposited within the time allowed, the final decree followed

on 4-8-1956. Thereafter E. P. No. 168 of 1957 was filed by the decree-holder (mortgagee) for bringing to sale all the six items of property

included in the hypotheca. In the sale held on 31-3-1958, all six items of the hypotheca were sold. In respect of three of the properties sold,

namely, items 2, 3 and 5 an application under Order 21 rule 90 was filed on 14-6-1958. Since there was no similar application in respect of lots 1,

4 and 6, the sale of these lots, was confirmed by order of the lower Court made on 10-9-1958. The application under Order 21 R. 90 was

dismissed on 8-12-1958 on failure to furnish security called for. Thereupon the sale of lots 2, 3 and 5 was confirmed. The dismissal of the

application to set aside the sale was set aside on 28-1-1959 on security being furnished. On 16-2-1959 the petition under Order 21 rule 90 was

taken on file and numbered as E. A. No. 104 of 1959 and the confirmation of sale of items 2, 3 and 5 already ordered was set aside. On 16-3-

1959 on the decree-holder''s application part satisfaction was recorded to the extent of Rs. 10,806-5-6 representing the sale of items 1, 4 and 6

which had been confirmed. Subsequently on 12-6-1959 E. A. No. 322 of 1959 was preferred by the judgment debtor under Order 34 Rule 5

accompanied by a deposit of Rs. 7,862-7-9 for payment to the decree-holder, inclusive of five per cent solatium payable to the purchaser. On 22-

9-1959 this application was ordered. The first appeal is directed against that order.

Mr. D. Ramaswami Aiyangar appearing for the appellant brought to our notice the language of Order 34 rule 5 and particularly Sub-clause (1)

of that rule which provides that right to apply for redemption of the mortgage, so to say, after a final decree has been passed and before the sale

had been confirmed was conditional upon the mortgagor (defendant) making payment into court of all amounts due from him under Sub-rule (i) of

Rule 4 of Order 34. Counsel drew our attention to the language of Sub-rule (1) of Rule 4 and indicated that the amount due from the judgment-

debtor according to the said Sub-rule (1) would be the entire decree amount and not a portion of it, taking into account the part satisfaction

recorded by the court subsequent to the date of the final decree.

This question has come up for decision before another Bench of this Court consisting of Leach C. J. and Lakshmana Rao J. The argument now put

forward before us was also advanced before the Bench but rejected. The case, which is unreported, is A. A. O. No. 717 of 1941 (Mad). The

Bench held that all amounts due from the judgment debtor under Sub-rule (i) of rule 4 occurring in rule 5 should be interpreted as all amounts due

under the decree at the time when the application is made under Order 34, Rule 5, and it is specifically ruled that the amounts already appropriated

towards the decree by other sales held under the decree must be taken into account. This interpretation having been accepted by the Bench, the

ruling is binding on us and we respectfully accept it. It is clear that giving that interpretation to the language of Rule 5 (1), there is nothing to prevent

the court from allowing redemption of part of the mortgaged property which remained unsold.

Mr. Ramaswami Aiyangar pointed out that rule 5 did not contemplate redemption of a part of the mortgaged property because the resulting order

to be passed would be in effect to sustain the decree in part and to cancel the decree in part. We do not think there is much substance in this

argument because rule 5 makes it clear that on the application being made and the redemption deposit being put into court, the court is entitled to

pass a final decree or if the final decree had already been passed, to pass an order in one of the three ways, namely, (1) ordering the plaintiff to

deliver up the documents referred to in the preliminary decree, (2) if necessary, ordering the plaintiff to transfer the mortgaged property as directed

in the said decree, and (3) if also necessary ,ordering the plaintiff to put the defendant in possession of the property. One of these three orders as

would suit the circumstances of the case has to be made by the court. That does not mean that the mortgage decree is set aside of the sale already

held under the final decree is treated by the court as a sale which has no legal basis''. In giving effect to the right of redemption to the mortgagor the

Legislature has made provision for redemption being made even at the last stage after the final decree has been passed, and after the execution the

sale has taken place provided that the sale has not been confirmed. In this case the sale of items 2, 3 and 5 has not been confirmed. In our view the

right conferred by Order 34 rule 5 is a substantive right and it should not be whittled down by any consideration of the judgment debtor being

responsible for the delay in passing the order of confirmation of the sale.

Another argument of Mr. Ramaswami Iyengar was that the order of confirmation of lots 1, 4 and 6 would be a bar to the right of the judgment

debtor to apply under Order 34 Rule 5. In our opinion this confirmation can take effect only with reference to the properties the sale of which had

been confirmed and can have no effect upon the properties the sale of which remained unconfirmed.

Whether an appeal lies or not, it is immaterial because in the view we have taken, it no appeal lies, we would be entitled to interfere in our

revisional powers. In the view we have taken no interference is however called for.

C. M. A. No. 137 of 1960 is therefore dismissed. C. R. P. No. 1051 of 1960 is also dismissed. But with reference to the order in C. M. A.

No. 138 of 1960, it is necessary to set aside that order, because the learned Judge has under a misconception set aside the, sale, of lots 2, 3 and

The sale of lots 2, 3 and 5 would have no legal existence hereafter when the decree on which these sales were based is itself vacated by reason

of the payment made under Order 34 Rule 5. The order of the learned Judge in E. A. No. 104 of 1959 is therefore set aside. No consequential

orders are necessary. No costs either in the C. M. As. or in the C. R. P.