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2015 DIGILAW 1559 (MAD)

M. Vijaya v. M. R. Chinnadurai

2015-03-20

PUSHPA SATHYANARAYANA

body2015
Judgment :- 1. By way of instant Civil Revision Petition under Section 115 of the Code of Civil Procedure, the auction purchaser has assailed an order dated 18.7.2012 passed by the Principal District Judge, Theni, in C.M.A. No. 3 of 2011 reversing the fair and decretal order dated 18.3.2010 passed by the Subordinate Judge, Periakulam, in E.A. No. 141 of 2009 in E.P. No. 28 of 1999 in O.S. No. 253 of 1988. 2. Brief facts relevant for the purpose of deciding the instant petition are that the plaintiff Karur Vysya Bank Limited, Periyakulam, filed O.S. No. 253 of 1988 before the Subordinate Court, Periyakulam, for recovery of money against the defendants based on a mortgage dated 13.7.1985. Preliminary decree was passed in the suit on 14.11.1994 followed by a final decree passed on 30.3.1998. Thereafter, the plaintiff had filed Execution Petition in E.P. No. 28 of 1999 before the Sub-Court, Periyakulam, for recovery of Rs.6,61,485/- with 14.5% future interest. Pursuant to the same, the auction of the secured property was brought to sale on 03.8.2009 in which the present petitioner was the highest bidder. While so, the Judgment debtors, viz., respondents 1 and 2 herein, who are the defendants 1 and 3 in the suit, had filed an application in E.A. No. 141 of 2009 under Order XXI Rule 90 CPC to set aside the Court auction sale. It is seen from the materials available on record that the revision petitioner had purchased the property for a sum of Rs.5,90,100/-, which is less than the decree amount. Therefore, the judgment debtors raised several contentions in the application including that of the value of the sale price fixed for the property. The learned Subordinate Judge, Periyakulam, dismissed the said E.A. No. 141 of 2009 on 18.3.2010. On the same day, the auction sale was confirmed in favour of the revision petitioner and as the revision petitioner / auction purchaser had deposited the sale amount, the same was withdrawn by the plaintiff / decree holder. However, aggrieved by the order passed by the learned Subordinate Judge, Periyakulam, dismissing E.A. No. 141 of 2009, the judgment debtors filed C.M.A. No. 3 of 2011 before the Principal District Court, Theni. However, aggrieved by the order passed by the learned Subordinate Judge, Periyakulam, dismissing E.A. No. 141 of 2009, the judgment debtors filed C.M.A. No. 3 of 2011 before the Principal District Court, Theni. Pending appeal, the judgment debtors also filed an application in I.A. No. 10 of 2012 under Order XXXIV Rule 5 CPC for redemption of the mortgage as against which the decree holder had filed counter as per which they had to deposit a sum of Rs.10,78,229.02 and break-up of the same is as follows:- Amount towards EP Rs. 6,61,485.33 Interest Rs. 4,15,630.94 Cost Rs. 1,112.75 Total Rs.10,78,229.02 3. The First Appellate Court, by judgment dated 18.7.2012, allowed the said appeal and also I.A. No. 10 of 2012 filed under Order XXXIV Rule 5 CPC directing the judgment debtors to deposit Rs.10,78,229.02 along with interest from 04.8.2009 till the date of deposit and also an additional 5% of the auction amount on or before 16.8.2012. Being aggrieved and dissatisfied with the said order, the present Revision Petition has been focused by the auction purchaser. 4. Heard the learned counsel appearing for the parties and perused the records. 5. The only question that has to be decided before this Court is whether, without going into the merits of the case, an application filed by the judgment debtor under Order XXXIV Rule 5 CPC is maintainable. 6. The fact remains that on date of dismissal of E.A. No. 141 of 2009, ie., on 18.3.2010, the sale was confirmed. Therefore, the point that has to be analyzed at the first instance is when the sale was already confirmed, whether such an application is maintainable in law. 7. Even though the judgment debtors have challenged the sale raising all objections open to them, the same was rejected by the Executing Court. Therefore, it is mandatory that while dismissing the application to set aside, the sale will be confirmed automatically. In such circumstances, it is to be seen whether the deposit made by the respondents 1 and 2 would be of any use and whether the sale can be set aside. 8. Order XXXIV Rule 5 CPC recognises the right of the judgment-debtor to pay the decretal amount in an execution relating to a mortgage decree for sale at any time before the confirmation of sale. 8. Order XXXIV Rule 5 CPC recognises the right of the judgment-debtor to pay the decretal amount in an execution relating to a mortgage decree for sale at any time before the confirmation of sale. In the instant case, when the sale is challenged and that is pending appeal, the judgment debtors have filed an application to deposit the entire sale amount. As such, it is clear that the question of sale is yet to be decided by the First Appellate Court and therefore, the sale is deemed to be not confirmed. 9. Learned counsel appearing for the respondents 1 and 2 brought to the attention of this Court the judgment rendered by the Hon'ble Supreme Court in Kharaiti Lal vs. Raminder Kaur and others [ AIR 2000 SC 1148 ]. In the said case, the Hon'ble Apex Court held that the sale would attain finality only on disposal of the appeal. In this regard, it would be relevant to refer to paragraph 11 of the judgment which reads as follows:- “The above question is identical to the question framed by the Division Bench of the High Court in this case. This Court, on a consideration of a number of decisions, including the decision of this Court in Hukamchand's case ( AIR 1968 SC 86 ) (supra) laid down that if an appeal was pending against an order refusing to set aside the sale, the confirmation of sale as also the issuance of Sale Certificate would be in a nebulous state and, consequently, it would be open to the judgment-debtor to invoke the provisions of Order 34 Rule 5 C.P.C. and make the necessary deposits to save his property from being transferred to a third person or, may be, to the decree-holder, in execution of the decree passed in the mortgage suit. It may be mentioned that in U. Nilan's case (1999 AIR SCW 3795 : AIR 1999 SC 3750 ) (supra), reliance was also placed upon the decision of this Court in Maganlal & Anr. It may be mentioned that in U. Nilan's case (1999 AIR SCW 3795 : AIR 1999 SC 3750 ) (supra), reliance was also placed upon the decision of this Court in Maganlal & Anr. v. Jaiswal Industries, Neemach & Ors., [1989] 4 SCC 344=[1989] 3 SCR 696=AIR (1989) SC 2113, in which it was held that the sale does not become absolute or irrevocable merely on passing an order confirming the sale under Order 21 Rule 92, but it would attain finality on the disposal of the appeal, if any, filed against an order refusing to set aside the sale.” 10. The facts in the case on hand are also similar to the one cited supra. In the present case also, the sale was set aside by the First Appellate Court. Therefore, the alleged confirmation of sale is automatically set aside. As such, there is no illegality or infirmity in the order passed by the learned Principal District Judge, Theni, warranting interference of this Court. In view of the foregoing, the Civil Revision Petition fails and stands dismissed as having no merits. The judgment and decree passed by the First Appellate Court are confirmed. It is open to the auction purchaser to withdraw the amount deposited as sale consideration along with additional 5% as deposited by the judgment debtors. However, in the circumstances of the case, the parties are directed to bear their own costs. As a sequel thereto, connected Miscellaneous Petitions are closed.