Judgment :- 1. Except C.R.P. No. 1135 of 1990, the other matters, namely, C.R.P. Nos. 591 and 592 of 1984 and C.M.A. No. 97 of 1984 arise from a common order passed by the learned Subordinate Judge, Tuticorin, in O.S. No. 148 of 1971. C.R.P. No. 591 of 1984 arises from E.A. No. 287 of 1981; C.R.P. No. 592 of 1984 arises from E.A. No. 224 of 1981 and C.M.A. No. 97 of 1984 arises from E.A. No. 501 of 1980 in the above suit. C.R.P. No. 1135 of 1990 also arises from the same suit, but it arises from E. A. No. 476 of 1986 against the Order passed thereon, on 20.7.1987. 2. The material facts of the case can be summarised as follows:— The plaint schedule property which is the subject matter of these proceedings originally belonged to late Ramasamydoss who died on 7.1.1964. He died as a debtor and some of his legal representatives filed a suit O.S. No. 26 of 1965, on the file of Sub Court, Tuticorin, for administration of the estate and for taking accounts. Various creditors were also made parties to the suit, and all the properties belonging to him were also scheduled, which included his self acquired properties and also properties over which he had an undivided share. In that suit, an Advocate was appointed as an Administrator, who took possession of the properties which included the subject matter of these proceedings. While the suit was pending, another suit was filed before the Sub Court, Tuticorin as O.S. No. 148 of 1971, by one Emperumalsami Naicker on the basis of a simple mortgage executed by the deceased. In that suit, the 11th defendant was the Administrator appointed in O.S. No. 26 of 1965. A preliminary decree was passed in that case on 29.8.1972, and final decree was also passed on 8.10.1973 for sale. While so, in the administration suit O.S. No. 26 of 1965, the plaint property was brought to sale by the Administrator and the wife of the second defendant in the mortgage suit, one Chandra, was the highest bidder. The Administrator moved the Sub Court for accepting the bid of Chandra for which various objections were raised and ultimately, as per order dated 15.7.1977, the Subordinate Judge, Tuticorin confirmed the sale in favour of Chandra. That order has become final. The Administrator moved the Sub Court for accepting the bid of Chandra for which various objections were raised and ultimately, as per order dated 15.7.1977, the Subordinate Judge, Tuticorin confirmed the sale in favour of Chandra. That order has become final. By virtue of that sale, Chandra became the purchaser of the property, which is the subject matter of these proceedings. It may be noted that one Emperumalsami Naicker, who is the 6th defendant in O.S. No. 26 of 1965 filed serious objection against the confirmation in favour of Chandra. It was after rejecting his objection, the sale was confirmed. The relevancy of the objection will be considered in the subsequent stages of this Order. 3. Thereafter, pursuant to the final decree in the mortgage suit O.S. No. 148 of 1971, the very same property was brought to sale on 11.1.1978, auction was held and the property was sold. An application under O. 21, R. 90, C.P.C. was filed by Chandra on 3.2.1978 alleging that the auction in the mortgage suit is bad and that she has purchased the property from the Administrator, and even before the sale in her favour, she was in possession of the property as lessee under the Administrator. It was further stated in that Application that the decree holder as well as auction purchaser were aware of the sale in her favour, and according to her, there cannot be two sales in respect of the same property. Various other grounds under O. 21, R. 90, C.P.C. were also stated therein. When that Application was filed, security had to be furnished, and she claimed exemption from furnishing security by filing E.A. No. 104 of 1978. That application was dismissed, and consequently her application under O. 21, R. 90, C.P.C. which was unnumbered then also could not be taken into consideration. Against the order in E.A. No. 104 of 1978, she filed C.R.P. No. 1631 of 1978. This Court, as per order dated 10.8.1978, set aside the order and directed the matter to be considered afresh. She also filed E.A. No. 110/78 to accept third party security. Even after remand, again the application was dismissed. C.M.A. No. 227 of 1979 was filed against that dismissal order. As per judgment dated 9.8.1979, the order of the executing Court was again set aside, and the matter was remitted back. She also filed E.A. No. 110/78 to accept third party security. Even after remand, again the application was dismissed. C.M.A. No. 227 of 1979 was filed against that dismissal order. As per judgment dated 9.8.1979, the order of the executing Court was again set aside, and the matter was remitted back. In the meanwhile, since the Application, namely, E.A. No. 110 of 1978, for accepting third party security was dismissed, the sale in this suit (O.S. No. 148 of 1971) was confirmed. After the judgment in C.M.A. No. 227 of 1979, third party security was furnished and the application to set aside the sale was numbered. When the same was registered, second defendant, along with his wife, filed E.A. No. 224 of 1981 under O. 34, R. 5, C.P.C. for permitting them to deposit the amount due to the decree-holder along with the poundage, and to have the sale set aside. The judgment debtor also filed E.A. 287 of 1981 under S. 151, C.P.C. to restore E.P. No. 62 of 1975, the reason being that even though the sale was confirmed by an Order, in view of the remand in C.M.A. No. 227 of 1979, the application under O. 21, R. 90. C.P.C. has to be restored and, therefore, the Execution Petition also has to be restored to file. It is these applications that were disposed of by the common order, which is challenged in these Revisions and C.M.A. The auction purchaser in O.S. No. 148 of 1971 is dead and his legal representatives have been impleaded. The decree-holder has no objection in setting aside the sale. But, according to the auction purchaser, Chandra, the purchaser from the Administrator, has no right or interest in the property, and she being a third party, is not entitled to file any application under O. 21, R. 90, C.P.C. According to the auction-purchaser, her (Chandras) so called interest is not affected by sale, for, she had no interest at all. The main reason for such contention was, even though she might be the purchaser from the Administrator, she had not taken a sale deed from the Administrator and, therefore, her right cannot be recognised by a Court of Law. The main reason for such contention was, even though she might be the purchaser from the Administrator, she had not taken a sale deed from the Administrator and, therefore, her right cannot be recognised by a Court of Law. Since the application is filed by a third party who has no interest in the property, mere pendency of that Application will not give a right to the judgment-debtor to move an application under O. 34, R. 5, C.P.C. It is further contended that once the application filed by Chandra has been dismissed for non-furnishing of security and the sale was confirmed, the subsequent setting aside of that order will not efface the earlier confirmation of sale. It is also contended that once the sale has been confirmed and the decree has been satisfied in O.S. No. 26 of 1965, the Execution Petition in that suit, namely, E.P. No. 62 of 1975 need not be reviewed and nothing more is to be executed in that case. 4. By the impunged order, the Court below said that Chandra has got an interest in the property and, therefore, she is competent to file an application under O. 21, R. 90, C.P.C. It was held that E.A. No. 501 of 1980 is maintainable. But, on merits, the lower Court said that no grounds have been made out that there was any fraud or irregularity in the conduct of the sale. Therefore, E.A. 501 of 1980 was dismissed. But there is a finding in that E.A that the application filed by Chandra is maintainable. Against that finding, the auction-purchaser has filed C.M.A. No. 97 of 1984. The lower Court further found that even though the earlier application for accepting the security was dismissed by that Court and in consequence thereof the execution of sale in this suit is continuing, and once that order has been set aside by the High Court, the order of confirmation is automatically effaced. If that be so, the second defendant is competent to file the application under O. 34, R. 5, C.P.C. Since the amount has been deposited for payment to the decree-holder and also the poundage, the lower Court said that E.A. 224 of 1981 has to be allowed. C.R.P. No. 592 of 1984 is filed against that order. 5. If that be so, the second defendant is competent to file the application under O. 34, R. 5, C.P.C. Since the amount has been deposited for payment to the decree-holder and also the poundage, the lower Court said that E.A. 224 of 1981 has to be allowed. C.R.P. No. 592 of 1984 is filed against that order. 5. The Executing Court further found that in view of the judgment in C.M.A. No. 227 of 1979, the earlier order in execution stands vacated and, therefore, the execution has to be revived. E.P. No. 62 of 1975 was directed to be restored to file. It is against that order, C.R.P. No. 591 of 1984 is filed. 6. After these orders were passed, it is seen that the decree-holder in O.S. No. 1971 filed an application stating that the amount deposited in that case may be allowed to be realised by issuing a cheque. 7. The lower Court, by a separate order, said that in view of the pendency of the Revision before this Court, a cheque need not be issued. The same is challenged in C.R.P. No. 1135 of 1990. 8. The following submissions were made by the revision petitioner, who is also appellant in C.M.A. No. 97 of 1984:— 1) The purchaser from the Administrator, namely, Chandra, who is the second respondent in C.R.P. Nos. 591 and 592 of 1984 and who is the first respondent in C.M.A. No. 97 of 1984, is not competent to file E.A. 501 of 1980, for setting aside the sale, the main reason being that though she may be a purchaser, the principles of Court-sale are not applicable, and, unless a sale deed is taken fro m the Administrator and registered in accordance with Registration Act, her right cannot be recognised. Therefore, she has no right, title or interest to file an application for setting aside the sale. 2) If the second respondent has no legal right to file an application under O. 21, R. 90, C.P.C. and when her application has been dismissed, consequent of her failure to furnish security and the sale is confirmed, merely because it is restored pursuant to the order of this Court, that will not make the already confirmed sale invalid. If so, the judgment debtor, i.e., the second defendant also cannot file an application under O. 34, R. 5, C.P.C. to have the sale set aside. If so, the judgment debtor, i.e., the second defendant also cannot file an application under O. 34, R. 5, C.P.C. to have the sale set aside. According to him, when an application under O. 34, R. 5, C.P.C. was filed, the sale was already confirmed. 9. As against the said contention, learned counsel for Chandra as well as the judgment-debtor contended that as per the provisions of O. 21, R. 90, C.P.C., even pecuniary interest is sufficient and the Court need only consider whether by sale, the interest of any person is affected. According to the learned counsel, it is not the interest in the property that has to be considered, and if so, Chandra, being the purchaser from the Administrator, is competent to file the application. If she is competent to file the publication, the subsequent application under O. 34, R. 5, C.P.C. is also maintainable when the same is filed along with the second defendant in the suit. 10. The first question to be considered in this case is, whether the second respondent is entitled to file an application under O. 21, R. 90, C.P.C. Learned counsel for the petitioner contended that the finding of the lower appellate Court that the sale deed is not necessary for getting title by sale conducted by an Administrator is not correct. According to learned counsel, the sale by Administrator is not a Court-sale, and the sale was also not conducted pursuant to an Order of Court. An Administrator or Receiver is appointed only to manage the property and any sale by him is an exercise of that Power of Management, though a permission is required from Court. If the sale by the Receiver is not equivalent to a Court-sale, the provisions of the Transfer of Property Act as well as Indian Stamp Act will have to be complied with and a regular sale deed as contemplated under S. 54 of the Transfer of Property Act also has to be obtained. Till then, the purchaser cannot say that she has obtained title to the property. The following decisions have been cited by learned counsel in that regard. Till then, the purchaser cannot say that she has obtained title to the property. The following decisions have been cited by learned counsel in that regard. AIR 1919 Calcutta 193 (Abdul Hasim v. Amar Krishna Shah), AIR 1927 Madras 1 = 25 L.W. 128 (F.B.) (Pinnamaneni Basava Sankaran v. Garapati Narasimhulu and others), AIR 1935 Madras 55 = (1934) 40 L.W. 747 (Kamsala Narasappa v. Hussain Sah and others), AIR 1969 S.C. 297 ( Jiban Krishna v. New Deerunham Coal Co.) and AIR 1969 Allahabad 554 ( Mazharul v. Khader Bux ). 11. In AIR 1919 Calcutta 193 ( supra ), it was held that ‘the title of a purchaser of land from an Official Receiver, appointed under the provisions of the Provincial Insolvency Act, required to be perfected by a proper conveyance executed by the Official Receiver and duly registered, and there is nothing to exempt such a conveyance from the operation of S. 54, of the Transfer of Property Act’. (Emphasis). 12. In AIR 1927 Madras 1 = 25 L.W. 128 (F.B.) (supra), a larger Bench consisting of five Judges of this Court, considered a similar question. Four learned Judges held that ‘a sale by an Official Receiver of the insolvents property is not a transfer contemplated by operation of law, nor it is a transfer by a decree or order, and even though the property vests in a Receiver in insolvency proceedings, when a Receiver transfers the property to an alienee, the alienation is a voluntary transfer and is as much an act of parties as any transfer by a private individual. 13. In AIR 1935 Madras 55 = 40 L.W. 747 (supra), it was held that ‘the Official receiver is not a Civil Officer and hence a transfer deed executed by the Official Receiver in pursuance of an auction sale held by him is not exempt from registration under S. 17(2) (xii) of the Registration Act’. 14. 13. In AIR 1935 Madras 55 = 40 L.W. 747 (supra), it was held that ‘the Official receiver is not a Civil Officer and hence a transfer deed executed by the Official Receiver in pursuance of an auction sale held by him is not exempt from registration under S. 17(2) (xii) of the Registration Act’. 14. In AIR 1960 SC 297 ( supra ), the question raised for consideration was, whether a sale by a Receiver is liable to be set aside under O. 21, R. 89, C.P.C. Their Lordships held thus:— “Where the Court appoints a Receiver and gives him liberty to sell the property the Receiver may either sell the property and thereby realise the money for the satisfaction of the decree, or he may, even without selling the property, seek to satisfy the decree by the collection of rents due from the property or other ways open to him under the law. In such a case it is difficult to hold that by the very appointment of the Receiver clothing him with the power to sell the property if he thought it necessary to do so, the Court has ordered the sale of the said property within the meaning of O. 21, R. 82, C.P.C. Further, as the provisions of R. 66, O. 21 are inapplicable to sales held by Receivers, it is obvious that the second condition prescribed by R. 89 (1)(b) is equally inapplicable and it is undoubtedly one of the two essential conditions for the successful prosecution of an application under R. 89 of O. 21. This fact clearly emphasises the inapplicability of the whole Rule to sales held by receiver s”. Similar is the case reported in AIR 1969 Allahabad 554 (supra) wherein the administration was in respect of an evacuee property. It was held that ‘when the Custodian sells the evacuee property under S. 10 (2)(b), prima facie the provisions of the Transfer of Property Act would apply. So the sale of property worth more than Rs. 100/- must be in writing and must also be registered, and if the property is less than Rs. 100/-, it may be either by a registered instrument or oral sale, or by delivery of possession. In that case, their Lordships followed an earlier decision of this Court reported in AIR 1935 Madras 55 = 40 L.W. 747 (supra). 15. 100/- must be in writing and must also be registered, and if the property is less than Rs. 100/-, it may be either by a registered instrument or oral sale, or by delivery of possession. In that case, their Lordships followed an earlier decision of this Court reported in AIR 1935 Madras 55 = 40 L.W. 747 (supra). 15. From these decisions, it is clear that the sale by an Administrator or Receiver cannot be treated as a Court sale. The person who claims title to the property on the basis of such sale can claim absolute title or perfect his or her title only on the basis of a registered instrument as stated in S. 54 of the Transfer of Property Act. In that view, it cannot be doubted that Chandra, who is the second respondent in the revision Petitions cannot get title to the property. The finding of the lower Court equating the sale by Receiver with that of a Court sale is, therefore, not correct. That argument of the learned counsel for the petitioner is, therefore, well-founded. 16. Merely because Chandra did not get title to the property, can she be said as a person disentitled to file an application under O. 21, R. 90, C.P.C., is the question that has to be considered. 17. The relevant portion of O. 21, R. 90, C.P.C., after its Amendment under Act 104 of 1976 reads thus:— “Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale , may apply to the Court to set aside the sale on the ground of a material irregularity of fraud in publishing or conducting it”. (Emphasis supplied) 18. What is meant by ‘interest’ for the purpose of O. 21, R. 90, C.P.C.? According to decided cases, it may be an interest as that of a mortgagee or any pecuniary interest in respect of the property. It covers every sort of interest recognised by law, proprietary, possessory and pecuniary. (Emphasis supplied) 18. What is meant by ‘interest’ for the purpose of O. 21, R. 90, C.P.C.? According to decided cases, it may be an interest as that of a mortgagee or any pecuniary interest in respect of the property. It covers every sort of interest recognised by law, proprietary, possessory and pecuniary. If any interest that is recognised by law is affected by the sale, the person so affected is competent to file an application under O. 21, R. 90, C.P.C. Even though the second respondent may not have perfected title, can she be said as a person having no interest in the property, or whether her claim is not ‘interest’ in the property which is affected by the sale, is the question to be considered. 19. Before going to the settled position of law, I have already said that the Order of the Court dated 15.2.1977, which I have referred to earlier, is irrelevant. It was the auction purchaser who filed objections stating that the sale in favour of the second respondent should not be confirmed. Rejecting his objections, the Court directed that the second respondent is the highest bidder and that she has paid the amount and no reason is stated as to why the sale should not be confirmed. His application was d ismissed and the sale by the Administrator was confirmed by that Order. Whether that Order can be treated as an ‘interest’ in the property, is also to be considered. In this connection, it may also be noted that before the auction, she was in possession of the property as a lessee under the Administrator. It is now admitted that the Administrator has also been discharged and she is in possession of the property on the date when she filed the application under O. 21, R. 90, C.P.C. On the basis of the Ord er dated 15.2.1977, along with her continued possession, before the date of sale in this case, it cannot be doubted that she has got some right over the property that it may be imperfect. In one of the earliest decisions of a Division Bench of the Patna High Court reported in AIR 1919 Patna 127 (Brij Kishore v. Pratan Narain), their Lordships considered whether a Hindu reversioner can file an application to set aside the sale. In one of the earliest decisions of a Division Bench of the Patna High Court reported in AIR 1919 Patna 127 (Brij Kishore v. Pratan Narain), their Lordships considered whether a Hindu reversioner can file an application to set aside the sale. It is not disputed that a Hindu reversioner has no right over the property so long as the widow is alive. Considering the same, their Lordships compared the earlier Code of Civil Procedure and also the procedure after 1908. While considering the same, their Lordships said thus:— “Under Sec. 311 of the Code of 1882, the reversioner would have been no less competent to apply to set aside the sale; for that section, too, conferred the power to do so upon a person ‘whose immovable property has been sold’. O. 21, R. 90 of the present Code goes, in my opinion still further and the words ‘whose interests are affected by the sale’ would seem to include not only a reversioner but possibly also persons who have no interest in the property itself , such as persons entitled to specific performance under a contract of sale or licensees.” (Emphasis). There, the Lordships of the Patna High Court did not finally decide as to what is the scope of ‘interest’. 20. In AIR 1924 Calcutta 786 ( Dhirendra Nath v. Kamini Kumar ), a Division Bench of that High Court held thus:— “Though a decree holder has lost his right to share in the rateable distribution of the assets he is still a person “whose interests are affected by the sale and therefore he is entitled to maintain an application. It cannot be said that an attaching creditor has no interest in the sale of the property or in the property itself. ‘Interest’ need not necessarily be some sort of proprietary or possessory title. It may be pecuniary interest”. The above decision was cited before a learned Judge of this Court who decided a similar case in AIR 1927 Madras 783 = 26 L.W. 164 = 53 MLJ 229 ( Narayanan v. Pappayi ) to contend that attachment by itself will not create any interest. In spite of the same, the application was held to be maintainable. In that case, the applicant was a purchaser of one item of property which was sold in auction. 21. In spite of the same, the application was held to be maintainable. In that case, the applicant was a purchaser of one item of property which was sold in auction. 21. In a Full Bench decision of this Court reported in AIR 1939 Madras 250 = 49 L.W. 110 (Ayyappa Naicker v. Kasiperumal Nayakar and others ), the decision in AIR 1927 Madras 783 = 26 L.W. 164 = 53 MLJ 229 (supra) was approved. The Full Bench said, ‘The words whose interests are affected by the sale are not limited to refer only to a person having a proprietory or possessory title in the property, but are intended to apply also to a person whose pecuniary interests are affected by the sale. The Legislature intended to confer the right to apply on any one who is directly and immediately affected by the sale. It is true that a person who attaches before judgment is not a secured creditor in ordinary sense, but it is clear that he has some interest i n the property. A person who has obtained an attachment before judgment is directly and immediately affected in such circumstances, and therefore, is within O. 21, R. 90, and can apply under it. The fact that he has not obtained a decree at the time he filed his application does not make any difference. If he obtained a decree before making the application, his position is, of course, strengthened, but the attachment before judgment is sufficient in itself to bring him within the category of persons who se interests are affected by the sale’. 22. In another Full Bench decision of our High Court reported in AIR 1963 Madras 156 = (1962) 75 L.W. 713 ( Sailappan v. Subbiah ), their Lordships said, “The words of Order 21, Rule 90, C.P.C. are wider than those in Order 21, Rule 89, C.P.C., which enables only a person “holding an interest” in the property sold, for applying to set aside the same. Thus, while R. 89 requires that the applicant should have an interest in the property, it would be sufficient for the purpose of Rule 90, C.P.C., if the applicants interests are affected by the sale. A person charged with possession of the property and who has an interest in retaining such possession will prima facie come under this provision”. (Emphasis) 23. A person charged with possession of the property and who has an interest in retaining such possession will prima facie come under this provision”. (Emphasis) 23. The principles enunciated in the above decisions of this Court were reiterated by a learned Judge of this Court reported in AIR 1975 Madras 36 = (1974) 87 L.W. 328 (V.A. Narayana Raja v. Meyyappa Chettiar). 24. In view of these settled principles, even though the second respondent may not have perfected her title by getting a sale deed, she being in possession and the sale in her favour has been confirmed by an Order of Court and also as a person interested in retaining her possession, she will be competent to file an application under O. 21, R. 90, C.P.C. 25. One more circumstance that may also be considered at this junction is, the auction-purchasers wife also filed a suit as O.S. No. 15 of 1973. She was also a mortgagee. Property was brought to sale, and later it was the very same second respondent who paid the entire amount to the auction purchasers wife and full satisfaction was entered. If payment could be made by her and the Court also recorded full satisfaction, it follows that cither she is a person interested in discharging a decree debt or is a representative of the judgment debtor therein. In either way, by discharging the debt, the decree-holder, who is none other than the auction purchasers wife also recognised her interest in the property and not as a volunteer. 26. It is also not disputed that pursuant to the sale by the Administrator, proceedings were initiated by Tashildar, Kovilpatti, and patta was also given to the second respondent, recognising her as the titleholder. By getting a patta, it should not be understood that she has got absolute title on the basis of a conveyance. These documents will be taken as a piece of evidence to show that she is interested in retaining the possession, though her claim is that of a title-holder. When this Court recognised even an attaching creditor as a person ‘interested’ and competent to file an application under O. 21, R. 90, C.P.C. (though the attachment does not create any interest in the property), the case of the second respondent in these Revisions is much stronger. When this Court recognised even an attaching creditor as a person ‘interested’ and competent to file an application under O. 21, R. 90, C.P.C. (though the attachment does not create any interest in the property), the case of the second respondent in these Revisions is much stronger. The sale in her favour has been recognised by Court and she has paid the full consideration. She is, therefore, in a better position and if the Court sale is allowed to stand, she will be dispossessed, and even the sale by the Administrator will be of no use. 27. Learned counsel for the petitioner argued that since no document has been taken from the Administrator, she has no interest in the property or that her interest is not affected by sale cannot be accepted. 28. If she is competent to file an application under O. 21, R. 90, C.P.C., naturally, the sale cannot be confirmed without disposing of that Application. O. 21, R. 92, C.P.C. says that ‘Where no application is made under R. 89, R. 90 or R. 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and there upon the sale shall become absolute’. So, when an application is made under R. 90, the sale cannot be confirmed. In this case, along with the application which was filed in time, E.A. 104 of 1978 was also filed to dispose with the furnishing of security. Only if that application is allowed, the subsequent application under O. 21, R. 90, C.P.C. could be registered and numbered. The Court dismissed E.A. 104 of 1978. Naturally, it refused to take notice of the application under. O. 21, R. 90, C.P.C. which in effect amounts to dismissal. A Revision was taken before this Court in C.R.P. No. 1631 of 1978. The order was set aside and the matter was remanded. Thereafter, a fresh application was filed as E.A. No. 110 of 1979 offering third party security. The same was also dismissed. Subsequently, C.M.A. No. 227 of 1979 was filed before this Court. The same was also set aside and the executing Court was directed to reconsider the same. In the meanwhile, while E.A. 110 of 1979 was dismissed, on 26.4.1979, the Executing Court confirmed the sale. The same was also dismissed. Subsequently, C.M.A. No. 227 of 1979 was filed before this Court. The same was also set aside and the executing Court was directed to reconsider the same. In the meanwhile, while E.A. 110 of 1979 was dismissed, on 26.4.1979, the Executing Court confirmed the sale. In C.M.A. No. 227 of 1979, when the Order was set aside, and that was reconsidered by the Executing Court, the security offered was accepted. But at the time when the security was accepted and the application under O. 21, R. 90, C.P.C. was restored to file and numbered as E.A. 501 of 1980, the sale had already been confirmed. What is the consequence of such confirmation, is to be considered. All decided cases say that the confirmation is of no consequence. 29. In one of the earliest decisions of this Court reported in 49 L.W. 158 (Marudamuthu Mudaliar v. H.K. Venkatarama Ayyar), the question raised was, where an application to furnish security is dismissed, whether an appeal is maintainable from that Order. The Court held thus:— “Where an application having been made under Order 21, Rule 90, of the Code of Civil Procedure for setting aside a Court-sale, the Court ordered the applicant to furnish security by depositing the sale amount in cash, and on the applicant tendering a draft bond offering immovable property as security, the Court declined to accept it and rejected the application under Oder 21, R. 90”. 30. In AIR 1934 P.C. 134 = 40 L.W. 65 (Chandra Mani v. Anarjan Bibi), the question that arose for consideration was, when does a sale become absolute for the purpose of taking possession. In construing the same, their Lordships said thus:— “ln construing the meaning of words “when the sale becomes absolute” in Art. 180 regard must be had not only to the provisions of O. 21, R. 92 (I) but also to the other material sections and orders of the Code including those which relates to appeals from orders made under O. 21, R. 92 (1). When therefore there is an appeal from an order of the Judge disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180 until the disposal of the Appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do when he decided to disallow the above mentioned application”. 31. In view of the decision reported in 49 L.W. 158 (supra) and also the decision of the Privy Council cited supra, the decision in C.M.A. 227 of 1979 must be construed as one refusing to set aside the sale, and any confirmation between by the executing Court will be of no value. 32. In 1970 K.L.T. 1078 (Kunjukrishnan v. Viswanathan) also, a Division Bench of the Kerala High Court considered this point and held thus:— “The order confirming the sale is a dependent order depending upon the dismissal of the application under Rr. 89, 90 or 91 and if, therefore, the said dismissal is set aside and application is restored, the confirmation already made would become ineffective and such order of confirmation should be treated as ineffective or automatically vacated”. 33. In AIR 1980 Kerala 236 (State Bank of Travancore v. Mythen Kannu Mas tan Kanju), a Division Bench of the Kerala High Court held thus”- “Where an application under R. 90 of O. 21, Civil P.C. to set aside the sale dismissed by the Executing Court was directed by the appellate Court to be restored and heard on merits and it was accordingly done and the application was again dismissed, there should be a fresh order confirming the sale in terms of R. 92. The view that the earlier order of confirmation automatically got revived on the dismissal of the application was not correct”. 34. In view of these decisions, even though there is an order confirming the sale by the executing Court, since subsequent to that Order, when the application under O. 21, R. 90, C.P.C. was directed to be restored and registered, the confirmation gets automatically vacated. The application under O. 21, R. 90, C.P.C. filed by the second respondent is to be deemed to be pending for all purposes and the sale did not become absolute. The application under O. 21, R. 90, C.P.C. filed by the second respondent is to be deemed to be pending for all purposes and the sale did not become absolute. The contention of the petitioner that the application by the second respondent is by a stranger not having any interest, or her interests are not affected by the sale, having been found against, the sale also could not be confirmed till her application is finally disposed of. That application was finally disposed of only by the impunged order now under challenge. 35. Assuming that the second respondent is not affected by the sale, how does the argument advance the case of the petitioner has also to be considered. 36. When the second respondent filed an application under O. 21, R. 90, C.P.C. along with an application to dispense with the furnishing of security, the matter could have been agitated before this Court at least when it came twice in C.R.P. 1631 of 1978 and C.M.A. 227 of 1979. Even though such an argument was put forward, this Court directed the Executing Court to consider the matter afresh. That means, even the question whether her interests are affected by the sale could be decided only when her application was being disposed of. Under O. 21, R. 90, C.P.C., there is a statutory bar to confirm the sale when an application is pending for setting aside the same. It does not say that it is qualified to any particular application. When the question whether the sale has affected the interest of any person is also decided along with the main relief to be granted in the application, till then, there cannot be any question of confirmation of sale. The argument of the counsel that the sale which was confirmed on 26.4.1979 will not get set aside or automatically vacated since the second respondent was not competent to file the application, is not correct and the same is against the provisions of the Statute. The Court should only consider whether there is an application for setting aside the sale or not. The confirmation or other questions consequent on the sale will be subject to the result of that application. Further, the confirmation dated 26.4.1979 was consequent on the dismissal of E.A. 104 of 1978 and also E.A. 110 of 1979. The Court should only consider whether there is an application for setting aside the sale or not. The confirmation or other questions consequent on the sale will be subject to the result of that application. Further, the confirmation dated 26.4.1979 was consequent on the dismissal of E.A. 104 of 1978 and also E.A. 110 of 1979. When these Orders were challenged before this Court and the same were set aside, the order of confirmation which was also only a dependent Order, also will become automatically vacated. If any Authority is required for this position, see the decision reported in AIR 1953 Madras 587 = (1953) 66 L.W. 13 ( Varadarajan v. Venkatapathi ). In that decision, their Lordships followed an earlier decision of this Court and also that of the Allahabad High Court and held thus:— “Even if that principle of dependent orders and decree laid down in ‘ Shama Purshad Roy Chowdhurys case cannot be held to be completely applicable to cases arising under O. 21, R. 90, would make the confirmation already made ineffective. Such an order of confirmation may be treated as ineffective or automatically vacated as observed by the learned Judges in AIR 1946 Madras 344 or even may be considered to be null and void as held by the Allahabad High Court in AIR 1934 Allahabad 433, the net result being such that order continues to have no legal effect or force”. The said decision was followed by the Kerala High Court in 1970 K.L.T. 1078 (supra) and also in AIR 1980 Kerala 236 (supra). 37. If the application under O. 21, R. 90, C.P.C. is pending, the subsequent application, namely, E.A. 224 of 1981 filed by the second defendant along with his wife, second respondent, under O. 34, R. 5, C.P.C. is also perfectly maintainable. The scope of O. 34, R. 5, C.P.C. read along with O. 21, R. 90, C.P.C. has been considered in detail by the Supreme Court in (1989) 4 SCC 344 = AIR 1989 SC 2113 ( Maganlal v. Jaiswal Industries ). In paragraph 8 of the judgment, their Lordships approved a judgment of this Court reported in 1975-II-MLJ 494 = 88 L.W. 477 (S.V. Ramalingam v. K.E. Rajagopalan ) and also 1984-II-M.L.J. 55 = (1984) 97 L.W. 328 (M. Savugan Chettiar v. V.A. Narayana Raja ). In paragraph 8 of the judgment, their Lordships approved a judgment of this Court reported in 1975-II-MLJ 494 = 88 L.W. 477 (S.V. Ramalingam v. K.E. Rajagopalan ) and also 1984-II-M.L.J. 55 = (1984) 97 L.W. 328 (M. Savugan Chettiar v. V.A. Narayana Raja ). In paragraphs 8 to 14, their Lordships held thus:— “A similar view was taken by this Court in Sri Ranga Nilayam Rama Krishna Rao v. Kandokori Chellayamma 1950 S.C.R. 806 = AIR 1953 S.C. 425 ) where it was held that when appeal is filed against an order to set aside an execution sale under O. 21, R. 90 of the Code no finality can be attached to the Order confirming the sale until the appeal is decided. In S.V. Ramalingam v. K.E. Rajagopalan (1915) 2 MLJ 494 = 88 L.W. 477 the question came up directly in connection with the applicability of O. 34, R. 5 itself which contemplates payment into Court “on or before the day fixed or at any time before the confirmation of a sale”. In that case too in pursuance of a final decree passed in this behalf the mortgaged property was sold and the applications made by the mortgagors for setting aside the sale were dismissed and the sale was confirmed and the sale certificate was also engrossed on stamp papers. The mortgagors filed an appeal against that order before the High Court and during the pendency of the appeal an application under O. 34, R. 5 was filed for redemption of mortgage. This application was opposed inter alia on the ground that such an application could not lie after the sale had been confirmed by the lower Court. While repelling the objection of the auction purchaser and holding that the judgment debtors were entitled to the benefit of O. 34, R. 5 of the Code it was held by Mr. Justice S. Natarajan (as his Lordship then was): “The confirmation of a sale subsequent to the dismissal of a petition under O. 21, R. 90 cannot, in reality, alter the situation when a mortgagor-judgment debtor has preferred within time an appeal against the dismissal of his petition under O. 21, R. 90. Though the confirmation of the sale does take the auction purchaser a step further than before the confirmation of the sale, the confirmation by itself, is in one sense, inchoate. Though the confirmation of the sale does take the auction purchaser a step further than before the confirmation of the sale, the confirmation by itself, is in one sense, inchoate. The confirmation gives the sale only viability but does not render the s ale an indefeasible one, till such time as the appeal preferred by the mortgagor against the validity of the sale remains undisposed. In that sense, the confirmation effected by the executing Court may become final as far as the executing Court is concerned, but it certainly does not stamp the transaction with irrevocable finality when alone the rights of parties get crystallised beyond retracement. Consequently, the appeal preferred by the judgment debtor has the effect of rendering a sale and its confirmation fluidal and nebulous. It, therefore, follows that the finality of the sale is rendered at large before the appellate Court in appeal and as such, the petitioners will be entitled to exercise the right conferred on thern under O. 34, R. 5 to redeem the mortgage”. The same view was reiterated in almost an identical case by a Bench of the Madras High Court in M. Sevugan Chettiar v. V.A. Narayana Raja AIR 1984 Mad. 334 = 97 L.W. 328. It was held that so long as there is no confirmation of sale in the eye of law and matter was sub judice in appeal time was available for the judgment debtor to make the deposit under O. 34, R. 5 of the Code and the proceeds of deposit could be worked out until the confirmation of sale reaches the finality. S. 60 of the Transfer of Property Act, confers on the mortgagor a right to redeem a mortgage. In so far as it is relevant for the purpose of these appeals the said section reads as here under:— 60. S. 60 of the Transfer of Property Act, confers on the mortgagor a right to redeem a mortgage. In so far as it is relevant for the purpose of these appeals the said section reads as here under:— 60. Right of Mortgagor to Redeem: At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation on his interest transferred to the mortgagee has been extinguished. Provided that the right conferred by this Section has not been extinguished by act of the parties or by decree of a Court”. In Raghunath Singh v. Mt. Hansraj Kunwar AIR 1934 P.C. 205 = 40 L.W. 390 in a suit filed for redemption of a mortgage a decree was passed containing the provision that in case of default by the plaintiff in payment his case will stand dismissed. Payment as contemplated by the decree was, however, not made and subsequently a second suit for redemption was filed It was contested inter alia on the ground that in view of the non-payment of the decretal amount the previous suit stood dismissed and on account of the dismissal of that suit the subsequent suit was not maintainable in as much as right of redemption stood extinguished. The Privy Council after making reference to the Proviso to S. 60 of the Transfer of Property Act rejected the aforesaid objection and held: “The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. The Privy Council after making reference to the Proviso to S. 60 of the Transfer of Property Act rejected the aforesaid objection and held: “The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is S. 60; but in their Lordships view the old decree cannot properly be construed as doing that which it does not purport to do viz. as extinguishing the right to redeem”. This question came up very recently before this Court in Mhadagonda Ramgonda Patil v. Shripal Balwant Rainade (1988) 3 S.C.C. 298 = AIR 1988 S.C. 1200 . The mortgagors in that case fded a suit for redemption and obtained a final decree for sale of the mortgaged property. They, however, did not execute that decree and allowed the same to be time-barred. Subsequently, a second suit for redemption was filed claiming that the mortgage still subsisted and the mortgagors were entitled to redeem the same and get possession of the mortgaged property. The suit was contested inter alia on the ground that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit their right of redemption had been extinguished. The aforesaid plea raised in defence was repelled by the trial Court and the suit for redemption was decreed. The defendants preferred an appeal against that decree before the High Court and raised a similar contention as was their defence in the trial Court. It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues, still the right of redemption was not extinguished. The findings of the High Court aforesaid with regard to the maintainability of the second suit for redemption were challenged by the defendants before this Court and it was reiterated by their learned counsel that second suit was not maintainable. The findings of the High Court aforesaid with regard to the maintainability of the second suit for redemption were challenged by the defendants before this Court and it was reiterated by their learned counsel that second suit was not maintainable. While repelling this submission and interpreting the provisions to S. 60 of the Transfer of Property Act it was held: (1989 SCC p. 303, para 12) “It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a Court. We are not concerned with the question of extinguishment of the right of redemption by the act of the parties. The question is whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished. The decree that is referred to in the Proviso to S. 60 of the Transfer of Property Ac t is a final decree in a suit for foreclosure, as provided in sub-rule (2) of R. 3 of O. 34 and a final decree in a redemption suit as provided in O. 34, R. 8(3)(a) of the Code of Civil Procedure. Sub-rule (2) of R. 3, inter alia, provides that where payment in accordance with sub-rule (1) has not been made, the Court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Thus, in a final decree in a suit for foreclosure, on the failure of the defendant to all amounts due, the extinguishment of the right of redemption has to be specifically declared. Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (q) if sub-rule (3) of R. 8 of O. 34 of the Code of Civil Procedure. Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (q) if sub-rule (3) of R. 8 of O. 34 of the Code of Civil Procedure. These are the two circumstances - (1) a final decree in a suit for foreclosure under O. 34 R. 3(2); and (2) a final decree in a suit for redemption under O. 34, R. 8 (3)(a) of the Code of Civil Procedure - when the right of redemption is extinguished”. “It was further held that in a suit for redemption of a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale, In view of these provisions the question of merger of mortgage debt in the decretal debt does not arise at all. In this view of the matter we are of the opinion that in case the provisions of Order 34, Rule 5 of the Code are held to be applicable to the facts of the instant case appropriate relief can be granted thereunder as the order of confirmation of the sale passed by the High Court in favour of first purchaser has not become absolute due to the pendency of these appeals against that Order nor has the right of redemption of Maganlal yet distinguished”. The aforesaid decision was followed by the Supreme Court again in (1995) 1 SCC 161 (New Kenilworth Hotels (P) Ltd. v. Ashoka Industries Ltd.). 38. Since I have extracted the decisions of the Supreme Court and also this Court, I do not think it is necessary to refer to the decisions of other High Courts, except for stating the Citations. The other decisions on this point are:— (1989-2- M.L.J. 212 = 1989-2-L.W. 250( Kaliammal and others v. S.A.S. Alagappa Chettiar and others ), 1937 -I-M.L.J. 569 = 45 L.W. 486 ( V.S. Subramania Asari v. Ramaswami Pillai ), 1967-2-M.L.J. 260 = 80 L.W. 124 ( Ramathal and others v. Nagarathinammal and others ) and AIR 1992 Madras 200 ( N. Krishnamoorthy v. N.M.A.R.H. Ramaswamy Chettiar). 39. 39. If, on the basis of these judgments, it cannot be doubted that so long as the sale has not been confirmed, the defendant in the suit was competent to file an application under Order 34, Rule 5, C.P.C. As per that Rule, the application could be filed at any time before confirmation of sale from barring the mortgagor from redeeming the property. 40. Counsel for the petitioner contended that it is not the mortgagor (second defendant) who has deposited the amount, and it is his case that they had no funds and they wanted only their alienees or persons claiming under them to deposit the amount. This, according to learned counsel, is not sufficient compliance of Order 34, Rule 5, C.P.C. Learned counsel submitted that it is only the ‘defendant’ who could apply for setting aside the sale under Order 34, Rule 5, C.P.C. and the benefit cannot be given to any other person. It is true that the wording of the Rule says that it is the defendant who has to deposit the amount and pray for setting aside the sale. In the application, E.A. 224 of 1981, the second defendant along with his wife, has slated that they are depositing the amount. Even if the defendant is not having the funds, under his directions and on his behalf when the amount is deposited, that will be sufficient compliance of Order 34, Rule 5, C.P.C., for the person who applies will be considered as agent of the defendant. When a deposit is made on behalf of or on the direction of the defendant, the deposit is made only in his name, and that will be sufficient compliance of Order 34, Rule 5, C.P.C. So, that contention of the learned counsel for the petitioner also cannot be accepted. 41. In view of my conclusion of that the second respondents interest is also affected and she is competent to file an application under O. 21, R. 90, C.P.C., and also in view of my finding that E.A. 224 of 1981 filed by the second defendant along with his wife, is proper and maintainable, it follows that C.R.P. No. 592 of 1984 and C.M.A. No. 97 of 1984 are only to be dismissed. C.M.A. No. 97 of 1984 is not maintainable for more than one reason. C.M.A. No. 97 of 1984 is not maintainable for more than one reason. That appeal is filed against the Order in E.A. No. 501 of 980, which is an application under O. 21, R. 90, C.P.C. The same is dismissed in favour of the revision petitioner. But there is a finding that the second respondent is competent to file an application. The appeal is preferred against that finding only. In the decision reported in (1995) 6 SCC 723 = AIR 1996 SC 378 ( Deva Ram v. Ishwar Chand ), in paragraph 27 of the judgment, at page 741 of S.C.C., their Lordships said thus:— “Thus, an appeal does not lie against mere ‘findings’ recorded by a Court unless the findings amount to a ‘decree’ or ‘order’. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate Court. (See Ganga Bai v. Vijay Kumar (1974) 3 S.C.C. 882 = AIR 1974 SC 1126 ). In Midnapur Zamindari Co. Ltd v. Naresh Narayan Roy (AIR 1922 P.C. 241 =(1921) 14 L.W. 265, it was observed as under: “Their Lordships do not consider that this will be found an actual plea of res judicata, for, the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them; but it is the finding of a Court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have now been able to perform”. Similar view was also expressed in an earlier decision in Run Bahadur Singh v. Lucho Koer (1885) ILR 11 Calcutta 301 (P.C). The Oudh Chief Court in Pateswari Din v. Mehant Sarju Dass AIR 1938 Oudh 18, held that where a decree in previous suit is wholly in favour of a person and gives him all the reliefs sought for by him, he has no right of appeal against the decree so as to enable him to contest any adverse finding against him in such suit. Hence such adverse finding cannot operate as res judicata as against him in a subsequent suit. Hence such adverse finding cannot operate as res judicata as against him in a subsequent suit. The High Court of Andhra Pradesh in Bansi Lal Batwa v. Lakshminarayan and the Full Bench of the High Court of Patna in Arjun Singh v. Tara Das Ghosh have taken the view that an appeal would notice against mere adverse finding unless such finding would constitute res judicata in subsequent proceedings. We are, however, not concerned with this aspect of the matter in the present case, nor are we concerned with the earlier aspect as the plea of res judicata having not been raised in the written statement the appellant cannot be permitted to raise the plea here”. 42. C.R.P. No. 591 of 1984 is directed against the Order in E.A. No. 287 of 1981 whereby the executing Court directed to restore the Execution Petition. In view of the judgment in C.M.A. No. 271 of 1979, the earlier confirmation of sale ordered on 26.4.1979 automatically gets vacated and, therefore, when E.A. No. 501 of 1980 is to be finally disposed of, the Execution Petition also has to be restored. The Court below followed only the correct procedure, which cannot be questioned in Revision. Civil Revision Petition No. 591 of 1984 is also without any merit and the same is, therefore, dismissed. 43. We have to consider only the fate of C.R.P. No. 1135 of 1990. That arises from an application filed by the petitioners to release the amount which was already deposited in Court by the second defendant. The Court simply dismissed the same on the ground of pendency of C.R.P. Nos. 591 and 592 of 1984 and records were also sent to this Court. The judgment-debtor has no objection in releasing the amount to the petition depositors, who are the decree-holders in the case. When the mortgagor has deposited the amount and the person who is entitled to receive the amount is the mortgagee, and they have applied for the amount, there cannot be any objection for the same. The auction purchaser cannot object when redemption is sought for by the mortgagor under law. Whatever amount that is legally payable to the auction-purchaser is also deposited. 44. Under the above circumstances, I do not think that I should set aside the order and remand the Application to the lower Court for fresh consideration. The auction purchaser cannot object when redemption is sought for by the mortgagor under law. Whatever amount that is legally payable to the auction-purchaser is also deposited. 44. Under the above circumstances, I do not think that I should set aside the order and remand the Application to the lower Court for fresh consideration. E.A. No. 476 of 1986 filed by the petitioners in C.R.P. No. 1135 of 1990 will have to be allowed, and I do so accordingly. 45. In the result, C.R.P. Nos. 591 and 592 of 1984 are dismissed. C.R.P. No. 1195 of 1990 will stand allowed. Parties are directed to bear their own costs in all these cases.