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2022 DIGILAW 1012 (MAD)

Basker v. Ponnammal

2022-04-25

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer in CRP(MD).No.1485 of 2012: Civil Revision Case is filed under Section 115 of C.P.C, to set aside the fair and decreetal order of the I Additional Sub Judge, Trichy in E.A.No.356 of 2011 in E.P.No.367 of 1995 in O.S.No.756 of 1989 dated 12.12.2011 and allow this revision with costs. Tr.CMA(MD).No.376 of 2022: Civil Miscellaneous Appeal is filed under Section 24 of Code of Civil Procedure, to withdraw or transfer CMA.No.54 of 2012 pending on the file of the I Additional District Court, Trichy to the file of this Hon'ble Court be heard along with C.R.P(MD).No.1485 of 2012 pending before this Court.) Common Order 1. The second respondent in CRP(MD).No.1485 of 2012 /third respondent in Tr.CMA(MD).No.376 of 2022 had filed O.S.No.756 of 1989 for recovery of money based on mortgage. A preliminary decree was passed on 22.10.1991. Since the judgment debtor has not deposited the amount, a final decree was passed on 14.08.1994. 2. After the final decree was passed, the petition mentioned property was brought to Court auction on 16.12.1998 and one Basker had purchased the same in the Court auction. An application was filed by the judgement debtor under Order 21 Rule 90 to set aside the sale on the ground of material irregularity and fraud. The Executing Court without even numbering the same, rejected the said application in the SR stage itself. This rejection order was challenged in CMA.No.261 of 2002 before the Fast Track Court No.I, Trichirappalli. The said appeal was dismissed on 10.11.2005. The order in the appeal was challenged by way of CMSA(MD).No.17 of 2007 before this Hon'ble Court. This Court by its order dated 15.07.2011 allowed the second appeal and remitted the matter back to the file of the I Additional Subordinate Court, Trichirappalli to dispose off the same after taking evidence to be adduced on both sides. In the said order, this Court has also granted liberty to the judgment debtor to file a petition under Order 34 Rule 5 of C.P.C, before the Executing Court. This order was challenged in SLP(Civil).No.25707 of 2011 before the Hon'ble Supreme Court. The said SLP was dismissed by the Hon'ble Supreme Court on 19.09.2011. Thus the said order has become final. 3. The Executing Court had numbered Order 21 Rule 90 of C.P.C application as E.A.No.355 of 2011. This order was challenged in SLP(Civil).No.25707 of 2011 before the Hon'ble Supreme Court. The said SLP was dismissed by the Hon'ble Supreme Court on 19.09.2011. Thus the said order has become final. 3. The Executing Court had numbered Order 21 Rule 90 of C.P.C application as E.A.No.355 of 2011. In the meantime, pursuant to the order granted by the High Court, the judgment debtor had filed E.A.No. 356 of 2011 under Order 34 Rule 5 of C.P.C seeking permission of the Court to deposit a sum of Rs.1,19,084/-. Both these applications were heard together by the Executing Court. The trial Court allowed E.A.No.356 of 2011 and directed the judgment debtor to deposit amount within a period of two months that is on or before 14.02.2012. 4. The Executing Court also allowed E.A.No.355 of 2011 on condition that the amount should be deposited on or before 15.02.2012. As per the report of the learned Principal Subordinate Judge, Trichirappalli, the amount has been deposited on 12.12.2011 itself. 5. Challenging the order passed in E.A.No.356 of 2011 allowing Order 34 Rule 5 application, CRP(MD).No.1485 of 2012 has been filed. Challenging the order passed in E.A.No.355 of 2011, CMA.No.54 of 2012 was filed before the I Additional District Court, Trichirappalli. Tr.CMP(MD).No.176 of 2013 was filed before this Court to transfer CMA.No.54 of 2012 to the file of the High Court to be heard along with CRP(MD).No.1485 of 2012. The said transfer CMP was allowed on 29.03.2016. Based upon the said order, CRP(MD).No.1485 of 2012 and Tr.CMA.No.376 of 2022 are listed today. 6. The learned counsel for the petitioner has contended that after so many years, the judgment debtor cannot be permitted to deposit the amount invoking Order 34 Rule 5 C.P.C. He further contended that the sale has already taken place and it has also been confirmed. After confirmation of the sale, an application under Order 21 Rule 90 C.P.C, is not maintainable and the judgment debtor cannot be permitted to make payment towards mortgage amount. 7. Per contra, the learned counsel for the respondents had contended that Order 21 Rule 90 application was filed within time. However, the Executing Court did not number the same and erroneously rejected the same. Hence, the judgment debtor was forced to file an appeal in CMA.No.261 of 2002 challenging the rejection of the application without being numbered. 7. Per contra, the learned counsel for the respondents had contended that Order 21 Rule 90 application was filed within time. However, the Executing Court did not number the same and erroneously rejected the same. Hence, the judgment debtor was forced to file an appeal in CMA.No.261 of 2002 challenging the rejection of the application without being numbered. Since the learned Appellate Judge also confirmed the order, the judgment debtor was constrained to file CMSA(MD).No.17 of 2007. This Court has directed the Executing Court to number Order 21 Rule 90 application. According to the learned counsel for the respondent, this Court has also granted liberty to the judgment debtor to file an application under Order 34 Rule 5 C.P.C to deposit the mortgage money. This order of our High Court has also been confirmed by the Hon'ble Supreme Court. Hence, only based upon an liberty granted by this Court, the judgment debtor had filed E.A.No.356 of 2011 seeking permission of the Court to deposit the mortgage money. 8. The learned counsel for the respondents had further contended that when the sale was confirmed, the application filed by the judgment debtor under Order 21 Rule 90 was pending, though in an un-numbered stage. The confirmation of the sale by the Executing Court cannot come in the way of judgment debtor for challenging the sale on the ground of irregularity and fraud. Hence, the learned counsel for the respondents contended that the Executing Court has rightly allowed E.A.Nos.355 of 2011 and 356 of 2011 and the orders passed in both the applications may be confirmed. 9. I have given anxious consideration to the submissions made on either side. 10. Admittedly, the respondents have suffered a money decree based upon a mortgage. The mortgagor is entitled to redeem the property till the sale is confirmed in favour of the auction purchaser. 11. In the present case, within the period of limitation, an application under Order 21 Rule 90 of C.P.C, has been filed by the judgment debtor challenging the sale on the ground of material irregularity and fraud. The trial court without numbering the same, has rejected it. However, our High Court by its order dated 15.07.2011 has directed the Executing Court to number Order 21 Rule 90 application. The trial court without numbering the same, has rejected it. However, our High Court by its order dated 15.07.2011 has directed the Executing Court to number Order 21 Rule 90 application. Hence, it is evident that when the sale was confirmed in favour of the auction purchaser, an application under Order 21 Rule 90 is deemed to have been pending before the Executing Court. As contemplated under Order 21 Rule 92 C.P.C, a sale cannot be confirmed in favour of the auction purchaser where an application under Order 21 Rule 90 C.P.C, is pending. In the present case, the Executing Court after rejecting Order 21 Rule 90 C.P.C, without even numbering the same, has proceeded to confirm the sale. Hence, confirmation of the sale made by the Executing Court is invalid and illegal. Moreover, this Court has directed the Executing Court to number Order 21 Rule 90 C.P.C application and pass orders on merit and in accordance with law after hearing both the sides. There is no limitation for filing application under Order 34 Rule 5 C.P.C for depositing the mortgage money. The said right is available to the judgment debtor till the sale is confirmed. In the present case, the sale has been erroneously confirmed by the Executing Court which will not take away the right of the judgment debtor. 12. The Executing Court has rightly allowed E.A.No.356 of 2011 which has been filed under Order 34 Rule 5 C.P.C seeking permission of the Court to deposit mortgage money. Since confirmation of the sale in favour of the auction purchaser is held to be invalid and illegal, allowing an application in E.A.No.356 of 2011 cannot be found fault with. 13. The Executing Court has also allowed E.A.No.355 of 2011. It has been filed under Order 21 Rule 90 C.P.C., The Executing Court has allowed the application on condition that deposit should be made on or before 15.02.2012. A report from the Subordinate Judge, Trichy indicates that the mortgage money has been deposited on 12.12.2011 itself. Hence, the mortgagor has deposited the mortgage money and he is entitled to redeem the property. 14. When the mortgagor has redeemed the mortgage, the sale in favour of the auction purchaser is set aside. The plaintiff/mortgagee is directed to return the original documents to the judgment debtor. 15. Hence, the mortgagor has deposited the mortgage money and he is entitled to redeem the property. 14. When the mortgagor has redeemed the mortgage, the sale in favour of the auction purchaser is set aside. The plaintiff/mortgagee is directed to return the original documents to the judgment debtor. 15. Since the sale has been set aside, the auction purchaser is entitled to refund of the purchased money along with accrued interest under Order 21 Rule 93 of C.P.C. 16. In view of the above said discussions, the Civil Revision Petition and the Transfer Civil Miscellaneous Appeal are dismissed by confirming the order passed by the Executing Court. No costs. Consequently connected miscellaneous petitions are closed.