Judgment :- 1. This revision is directed against the order passed in I.A. No. 65 of 1988 C.M.A. No. 78 of 1982. The auction purchaser is the petitioner herein. On the foot of two mortgages executed by V.K. Palaniappa Chettiar and another, O.S. No. 863 of 1973 was filed to recover the mortgage amount. In the said suit, a preliminary decree was passed on 22.12.1973 and a final decree was passed on 3.7.1974. In R.E.P. No. 45 of 1980 in O.S. No. 863 of 1973, the properties belonging to the judgment-debtors were brought for sale and sold in the court auction in favour of the petitioner herein 9.10.1980. The judgment-debtors filed R.E.A. No. 1222 of 1980 to set aside the sale held on 9.10.1980. But that petition was dismissed on 19.7.1982. As against the order passed in R.E.A. No. 1222 of 1980, C.M.A. No. 78 of 1982 was filed by the judgment-debtors and during the pendency of the said appeal I.A. No. 65 of 1988 was filed under Order 34, Rule 5 of C.P.C. for permission to deposit the amount due to the creditor so as to enable the judgment-debtors to redeem the mortgage property. While disposing of I.A. No. 65 of 1988 and C.M.A. No. 78 of 1982, the appellate court held as under: “During the pendency of such appeal, the mortgagor could deposit the amount. Accordingly, in this case, judgment-debtor has deposited the amount due in I.A. No. 65 of 1988 and though C.M.A. is dismissed, however petition I.A. No. 65 of 1988 is allowed and sale is set aside for the reasons stated in the application. There will be no order as to costs.” Consequently, in the decree passed in I.A. No. 65 of 1988 in C.M.A. No. 78 of 1982 the District Court held that “the sale held as on 9.10.1980 in R.E.P. No. 45 of 1980 in O.S. No. 836 of 1973 be and hereby set aside and that there be the costs in this petition.” 2. It is against the order passed in I.A. No. 65 of 1988, the present revision has been preferred by the auction-purchaser. 3. Learned senior counsel, Mr. It is against the order passed in I.A. No. 65 of 1988, the present revision has been preferred by the auction-purchaser. 3. Learned senior counsel, Mr. T.V. Balakrishnan, appearing for the petitioner herein submitted as under:— The court below having rightly dismissed the C.M.A. erred in allowing the application for deposit filed under Order 34, Rule 5, C.P.C. The application filed by the judgment debtors under Order 21, Rule 90, had been dismissed, sale has been confirmed, the sale certificate has been issued and symbolic delivery of possession was also given. Under those circumstances, the application made under Order 34, Rule 5, C.P.C. is not maintainable. An application under Order 34, Rule 5, C.P.C. is maintainable only before the sale is confirmed. Once the sale is confirmed, application under Order 34, Rule 5, C.P.C. cannot be filed. Since the C.M.A. was dismissed, the order passed in dismissing the application filed under Order 21, Rule 90, C.P.C. stands confirmed. Thereafter, it is not open to the judgment-debtors to file an application under Order 34, Rule 5, C.P.C. As against the order passed in the C.M.A., no revision was filed by the judgment-debtors. The revision was filed only against the order passed in I.A. No. 65 of 1988 filed under Order 34, Rule 5, C.P.C. In order to support this contention, the learned counsel appearing for the petitioner relied upon a decision of the Supreme Court the case of Hukamchand v. Bansilal & ors 1968 SC 86. Reliance was also placed upon a recent decision of this court reported in the case of N. Krishnamoorthyv. N.M.A.R.H.R. Chettiar AIR 1992 Mad. 200 . It was, therefore, pleaded that the lower court was not correct in allowing I.A. No. 65 of 1988. 4. On the other hand, learned counsel Mr. R.M. Krishnaraju, appearing for the respondents herein submitted as under:— The application filed under Order 34, Rule 90, C.P.C. was dismissed by the execution court. N.M.A.R.H.R. Chettiar AIR 1992 Mad. 200 . It was, therefore, pleaded that the lower court was not correct in allowing I.A. No. 65 of 1988. 4. On the other hand, learned counsel Mr. R.M. Krishnaraju, appearing for the respondents herein submitted as under:— The application filed under Order 34, Rule 90, C.P.C. was dismissed by the execution court. As against that order as CMA was filed before the appellate court and when the appeal is pending, the order passed by the execution court in the above said application would be in a nebulous stage since there is the possibility of the appellate court setting aside the order passed by the execution court in an application filed under Order 21, Rule 90, C.P.C. Therefore, according to the learned counsel, an application under Order 34, Rule 5, C.P.C. can be filed even before the appellate court. A cumulative reading of the order passed by the lower appellate court would go to show that the order passed in an application filed under Order 21, Rule 90, C.P.C. by the execution court was set aside and the lower appellate court permitted the judgment-debtors to deposit the amount due to the decree-holder. In order to support his contention that the petition under Order 34, Rule 5, C.P.C. can be filed even at the appellate stage, the learned counsel relied upon a decision of this Court in the case of M. Shaik Ali and Another v. State Bank of India Nagercoil 97 L.W. 483. On this aspect, the learned counsel also relied upon another judgment of this court rendered in the case of S.V. Ramalingam and another v. K. Rajagopalan and another 1975 (2) MLJ 494 = 88 L.W. 477. The learned counsel also placed reliance upon the judgment rendered in the case of Valliammal v. Subramania Iyer 1964-I-MLJ 275 on this aspect. Finally, the learned counsel contended that the High Court while exercising jurisdiction under S. 115, CPC, it is expected to do substantial justice to the parties. It was therefore, pleaded that the order passed by the lower appellate court is in order and hence, no interference is called for. 5. I have heard the rival submissions. 6. The fact remains that the petitioner herein is the auction-purchaser. It was therefore, pleaded that the order passed by the lower appellate court is in order and hence, no interference is called for. 5. I have heard the rival submissions. 6. The fact remains that the petitioner herein is the auction-purchaser. After obtaining the decree in O.S. No. 863 of 1973, the decree-holder filed R.E.P. No. 45 of 1980 and in the execution proceedings, the decree holder brought to the sale the properties belonging to the judgment-debtors, and the properties were sold, sale was confirmed, sale certificate was issued and possession was also taken. The judgment-debtors filed R.E.A. No. 1222 of 1980 under Order 21, Rule 90, to set aside the auction sale held on 9.10.1983. That application was dismissed on 19.7.1982. It is against that order, C.M.A. No. 78 of 1982 was filed. During the pendency of the appeal, I.A. No. 65 of 1988 was filed under Order 34, Rule 5, C.P.C. for permission to deposit the decree amount. 7. According to Order 34, Rule 5, C.P.C. after the dismissal of an application under Order 21, Rule 90, and before confirmation of sale, if the judgment-debtor pays the necessary amount and applies to have the sale set aside, the court under Order 34, Rule 5, as amended must set aside the same, notwithstanding that the applicant by his own acts and monoevures prevents the confirmation of the sale for a long period. In a sale held in pursuance of Rule 5, the stranger auction-purchaser acquires the right of the mortgagee and also of the mortgagor and it cannot be said that the right of redemption remains in the mortgagor after sale or in any event after confirmation thereof. According to the facts arising in the present case, the preliminary decree was passed on 22.12.1973 and the final decree was passed on 3.7.1974. The property was sold in court auction on 9.10.1980. The petition was filed under Order 21, Rule 90, on 19.7.1982. The court auction sale was confirmed on 11.3.1981. But the application I.A. No. 65 of 1988 under Order 34, Rule 5, was filed during the pendency of the appeal C.M.A. No. 78 of 1982. Therefore, in the present case, the petition under Order 34, Rule 5, was not filed before the confirmation of the sale. The court auction sale was confirmed on 11.3.1981. But the application I.A. No. 65 of 1988 under Order 34, Rule 5, was filed during the pendency of the appeal C.M.A. No. 78 of 1982. Therefore, in the present case, the petition under Order 34, Rule 5, was not filed before the confirmation of the sale. According to the judgment-debtors/respondents herein, during the appeal stage an order passed in a petition filed under Order 21, Rule 90, C.P.C. would be in a nebulous stage and therefore if the order passed in a petition filed under Order 21, Rule 90, is set aside in the appeal, then that would enable the judgment-debtors to press for an order on the petition filed under Order 34, Rule 5, C.P.C. In order to support this line of arguments, reliance was placed on the decisions reported in the case of M. Shaik Ali and another v. State Bank of India, Nagercoil 97 L.W. 483 in the case of S.V. Ramalingam and another v. K. Rajagopalan and another 1975 (2) MLJ 494 = 88 L.W. 477 and the case of Valliammal v. Subramania Iyer 1964-I-MLJ 275. On the other hand, in order to support his contention that a petition under Order 34, Rule 5, C.P.C. would not lie after confirmation of the sale, the learned counsel for the petition herein relied upon a decision of the Supreme Court in the case of Hukamchand v. Bansilal & Ors. 1968 S.C. 86 and a recent decision of this court in the case, of N. Krishnamoorthy v. N.M.A.R.H.R. Chettiar AIR 1992 Mad. 200 . 8. It is no doubt true that when the appeal filed against the order passed in an application filed under Order 21, Rule 90, is pending, the order passed in the application filed under Order 21, Rule 90, is in a nebulous stage according to the decisions cited supra by the learned counsel for the judgment-debtors and therefore petition under Order 34, Rule 5, C.P.C. is maintainable and can be filed. This is because if the order passed by the execution court in an application filed under Order 21, Rule 90, is set aside by the appellate court then the application filed under Order 34, Rule 5, could be deemed to have been filed before the confirmation of the sale. This is because if the order passed by the execution court in an application filed under Order 21, Rule 90, is set aside by the appellate court then the application filed under Order 34, Rule 5, could be deemed to have been filed before the confirmation of the sale. On the other hand after confirmation of sale application under Order 34, Rule 5, C.P.C. is not maintainable. 9. But according to the facts arising in this case, the lower appellate court did not set aside the order passed by the execution court in an application filed under Order 21, Rule 90, C.P.C. in C.M.A. No. 78 of 1982. A plain reading of the following order passed in C.M.A. No. 78 of 1982 by the appellate court would make this aspect clear. So the lower court has correctly appreciated the contention raised by the parties and has dismissed the application is wanting in merits. Another contention is that the mortgagor is entitled to the benefits of Act 13/80. But this contention is no more available to the appellant because his petition No. 200 of 1980 before the Special Tahsildar has been dismissed and against order dated 22.8.1980 no appeal has been preferred. The order has therefore become final. Therefore, this appeal has to necessarily fail. It was further held notwithstanding the mortgagors petition for setting aside the sale has been dismissed by the executing court the matter was at large before the appellate court in appeal. There was therefore no final order of confirmation of sale before the appeal was disposed of. During the pendency of such appeal the mortgagor could deposit the amount. Accordingly in this case judgment debtor has deposited the amount due in I.A. No. 65/88 and though C.M.A. is dismissed, however, petition I.A. No. 65/88 is allowed and the sale is set aside for the reasons stated in the application. There will be no order as to costs.” 10. Therefore, it remains to be seen that at the first stage for the reasons stated therein the appellate court held that the order passed by the execution court in application filed under Order 21, Rule 90, is correct and therefore the appeal C.M.A. No. 78/82 has to fail. There will be no order as to costs.” 10. Therefore, it remains to be seen that at the first stage for the reasons stated therein the appellate court held that the order passed by the execution court in application filed under Order 21, Rule 90, is correct and therefore the appeal C.M.A. No. 78/82 has to fail. Thereafter, while considering the petition filed under Order 34, Rule 5, it was held that I.A. No. 65/88 is allowed and the sale is set aside for the reasons stated in the application. On the basis of the reasons stated in the application filed under Order 34, Rule 5 the order passed by the execution court in the petition filed under Order 21, Rule 90, cannot be set aside. 11. Therefore, unless the appeal C.M.A. No. 78/82 is allowed after setting aside the order passed by the execution court in the petition filed under Order 21, Rule 90, C.P.C., the application filed under Order 34, Rule 5, C.P.C. cannot be entertained and allowed. In the present case, the order passed by the execution court in the petition filed under Order 21, Rule 90, was not set aside. On the other hand, according to the appellate court C.M.A. No. 78/82 is liable to be failed. According to the appellate court even though the CMA is dismissed however the I.A. No. 65/88 is allowed. Therefore, the order passed by the lower appellate court is self-contradicting. According to the lower appellate court, for the reasons stated in I.A. No. 65/88 the sale is set aside. In an order passed in a petition filed under Order 34, Rule 5, the sale cannot be set aside. 12. For the foregoing reasons, the order passed by the lower appellate court in I.A. No. 65/88 stands set aside. In the result, the revision is allowed and there will be no order as to costs.