Madras High Court
A. Mariammal W/O. Arumugam Pillai vs V.S. Balasubramaniam S/O. Subramania ... on 3 October, 2005
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
Page 2187
1. This Civil Revision Petition is directed against the order dated 14.11.1997 of the Principal District Judge, Dindigul in I.A. No. 274 of 1991 in C.M.A. No. 33 of 1991, allowing the Petition filed by the Respondent/First Defendant under Order 34 Rule 5 C.P.C permitting him to deposit the Decree Amount. The Plaintiff/Decree Holder is the Revision Petitioner.
2. O.S.No. 353 of 1978:- The First Defendant has borrowed a sum of Rs. 15,000/- from the Plaintiff on the Mortgage Deed dated 07.05.1975. Since the amount was not paid, the Plaintiff has filed O.S. No. 353 of 1978 on the above Mortgage Deed. A Preliminary Decree was passed on 10.08.1979 for Rs. 21,568/- with subsequent Interest. In I.A. No. 2804 of 1980 in O.S. No. 353 of 1978, a Final Decree was also passed on 23.02.1981.
3. E.P.No. 17 of 1986:- In Execution of the Decree, the Plaintiff - Decree Holder has brought the mortgaged properties to sale. The Properties have been sold in the Execution Proceedings in the Court Auction Sale on 12.09.1990 for Rs. 20,000/-. The Judgment Debtor/First Defendant has filed the Application under Order 21 Rule 90 C.P.C. to set aside the Sale which was rejected by the Executing Court on 01.07.1991. Consequently, the Sale already held was confirmed.
4. C.M.A.No. 33 of 1991:- Aggrieved over the rejection of the Application, the First Defendant has preferred the Appeal before the District Court, Dindigul and obtained stay Page 2188 of all further proceedings in E.P. No. 17 of 1986. In the C.M.A, I.A. No. 274 of 1991 was filed under Order 34 Rule 5 C.P.C r/w Section 151 C.P.C seeking permission of the Court to deposit Rs. 32,172.45 under the Suit Mortgage Decree with subsequent interest and cost. That Application was resisted by the Decree Holder on the ground that the Application is not maintainable since the Sale has already been confirmed. After hearing the contentions of both parties, the District Court has closed that Application saying that the First Defendant/Judgment Debtor has already deposited the amount.
5. C.R.P. No. 91 of 1997:- Aggrieved against the order made in I.A. No. 274 of 1991, the Plaintiff/Decree Holder has preferred this Civil Revision Petition. After hearing both the parties, the High Court has set aside the order in I.A. No. 274 of 1991 and remitted back the matter to the District Court, Dindigul to consider the questions:
i. Whether the Petitioner is entitled to deposit the Decree Amount?;
ii.If the Petitioner is entitled to deposit the Decree amount, what is the consequential relief he is entitled to?
6. Consequent to the order passed by this Court, the learned District Judge has again taken up the enquiry in I.A.No. 274 of 1991. The Plaintiff/Decree Holder has resisted the Application contending that after the Court Auction Sale, he had to discharge the Mortgage Decree in favour of one Karthikeyani for which, the Mortgaged Property was brought for sale in E.P. No. 73 of 1987 in O.S. No. 683 of 1978. The Mortgaged Properties brought for Sale in the Court Auction by paying the Decree Amount in E.P. No. 73 of 1987. The Decree Holder contended that the Judgment-Debtor/First Defendant is to pay the entire amount. In consideration of the contentions of both parties, learned District Judge has found that the confirmation is yet to reach the finality and so long as there is no confirmation of Sale, time is available for the Judgment-Debtor to make the deposit and the process of deposit could be worked out. Further holding since the Confirmation is yet to reach the finality, the First Defendant is entitled to deposit the amount under Order 34 Rule 5 C.P.C, learned District Judge has allowed the Application in I.A. No. 274 of 1991 and ordered the Civil Miscellaneous Appeal accordingly.
7. Aggrieved over the order of the District Judge, Dindigul the Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner/Decree Holder has submitted that even without obtaining the permission from the Court, amount has been deposited in I.A.No. 274 of 1991 and that the same is not in compliance with Order 34 Rule 5 C.P.C. It is further submitted that when the Decree Holder has also paid the amount of Rs. 32,470/- to another Decree Holder in E.P. No. 73 of 1987, the Appellate Court has not properly appreciated the same and erred in finding that the First Defendant is entitled to deposit the Decree Amount in I.A. No. 274 of 1991. Drawing the attention of the Court to the amount payable, learned counsel for the Revision Petitioner has further submitted that the amount deposited is insufficient and the Appellate Court erred in allowing I.A. No. 274 of 1991. It is further submitted that without properly appreciating the points Page 2189 involved the Appellate Court erred in holding that the Application could be filed at any stage before the Confirmation of the Sale.
8. Countering the arguments, learned counsel for the First Respondent has submitted that when the Appeal - C.M.A. No. 33 of 1991 was preferred against the order of rejection of the Application under Order 21 Rule 90 C.P.C, the Confirmation of the Sale was in nebulous state. It was further contended that when the Confirmation of Sale has not become absolute, the First Defendant/Judgment Debtor was well within his rights to deposit the Decree amount. In support of his contention, learned counsel for the Respondent has relied upon the decision . It is further contended that the payment made in E.P. No. 73 of 1987 cannot be tagged to the Decree amount payable in E.P. No. 17 of 1986. Pointing out certain irregularities in the conducting of the Sale, it is contended that the Sale held on 12.03.1990 itself is vitiated. Submitting that the Appellate Court has rightly permitted the Judgment Debtor to deposit the Decree amount, learned counsel for the First Respondent/First Defendant has contended that the Impugned Order is well settled and there is no reason warranting interference.
9. In consideration of the contentious points, Impugned Order and other materials on record, the following points arise for consideration in this Civil Revision Petition:
i.Whether the Appellate Court was not right in finding that the Confirmation of Sale is yet to reach the finality?
ii.Whether the Appellate Court was not right in holding that the First Defendant is entitled to deposit the amount under Order 34 Rule 5 C.P.C?
iii.Whether the amount deposited is sufficient to discharge the Decree Amount? Can the payment of the Decree Amount in E.P.No. 73 of 1987 can be tagged to the Decree Amount payable?
iv.Whether the Impugned Order suffers from material irregularity warranting interference exercising the revisional jurisdiction of High Court?
10. Before we proceed to consider the contentious points urged, it is necessary to refer to certain few aspects. The disputed property relates to a residential house bearing Door No. 24 in Adivaram, Palani with an extent of 1540 Sq.Ft with stated boundaries thereon. In O.S. No. 683 of 1978, one R.Karthikeyani and others have also obtained a Final Decree (dated 17.06.1980) on a Mortgage Deed. In Execution of that Decree, the said Karthikeyani brought the properties to sale. In Execution of that Decree amount in O.S. No. 683 of 1978, the disputed property was sold on 03.09.1990 for Rs. 39,900/-.
11. The same property was again sold on 12.09.1990. Perhaps, the earlier Sale on 03.09.1990 was not brought to the Notice of the Court. In the Sale on 12.09.1990, the Revision Petitioner/Decree Holder himself was the Auction Purchaser and he purchased the property for Rs. 20,200/-. The Decree Holder/Purchaser has paid the amount to the Decree Holders in E.P.No. 73 of 1987 on 01.07.1991. The Application filed by the Judgment Debtor under Order 21 Rule 90 C.P.C was rejected on 01.07.1991 - on the same day (01.07.1991), the Sale was confirmed in E.P. No. 17 of 1996. On 01.07.1991, in E.P. No. 73 of 1987, full satisfaction was recorded Page 2190 and the Sale was set aside on the Petition filed by the Third Party viz., the Revision Petitioner herein. In view of recording of full satisfaction, Execution Petition was terminated in E.P. No. 73 of 1987.
12. For proper appreciation of the contentious points, certain dates are relevant to be noted:-
In E.P. No. 17 of 1996 property was sold ... 12.09.1990 11.11.1990....Sunday Or.21 R.90 E.A. Filed on... 12.11.1990 Application under Or.21 R.90 rejected on ... 01.07.1991 Confirmation of Sale ... 01.07.1991 Date of filing C.M.A. ... July 1991 I.A. No. 274/91 filed under Or.34 R.5 C.P.C ... 03.12.1991 Date of Deposit ... 24.01.1992 I.A. No. 274/91 closed on ... 13.12.1996 C.R.P. No. 91/1997 (filed) ... 18.09.1997 Sale of property in E.P. No. 73 OF 1987 IN O.S. No. 683 of 1978 was set aside ... 01.07.1991
13. Contending that the Deposit made by the First Defendant/Judgment Debtor is not a valid deposit, learned counsel for the Revision Petitioner/Decree Holder interalia raised the following contentions:-
i.for deposit of the amount in I.A. No. 274 of 1991, the First Defendant has not obtained the permission of the Court.
ii.The deposit was not made before the confirmation of the sale, but after the confirmation of the sale on 01.07.1991.
iii.the amount deposited is not sufficient to satisfy the Decree in E.P. No. 17 of 1986.
iv.The Judgment Debtor has not deposited the amount paid by the Decree Holder to another Decree Holders in E.P. No. 73 of 1987 in O.S. No. 683 of 1978.
14. After C.M.A.No. 33 of 1991 was filed, I.A. No. 274 of 1991 was filed in the Appellate Court to deposit the amount. Even before the Court could grant the permission, the amount was deposited on 03.12.1991. Such deposit of the amount without the permission of the Court is very much assailed by the Decree Holder. Contending that without permission of the Court the deposit cannot be made, learned counsel for the Revision Petitioner/Decree Holder has relied upon the decision reported in V.A. Narayana Raja v. Renganayaki Achi wherein it was held that in an Application under Page 2191 Order 34 Rule 5 C.P.C, the deposit could be made only after obtaining the permission of the Court. In the said decision, it was held, "It is to be noted that unless there is an order made by the Court either judicially or administratively, the deposit cannot be made in Court and the Petitioner only seeks the permission of the Court to enable him to make a deposit under Order 34 Rule 5 of the Code, though any relief under Order 34 Rule 5 of the Code can be got after the deposit...."
15. Placing reliance upon the same, learned counsel for the Revision Petitioner assailed the deposit of amount on the ground that no permission has been granted and the voluntary deposit of the Decree amount is not in compliance of Order 34 Rule 5 C.P.C. No doubt, no permission was granted by the Appellate Court to deposit the amount. It appears that the Counsel for the Judgment Debtor has applied for lodgment Schedule on 24.01.1992 for issuance of Challan for Rs. 32,173/-. Accordingly, the Challan was issued by the then Sheristadar of the District Court without obtaining any order from the Court and the Petitioner had also remitted the amount of Rs. 32,173/- on 30.01.1992 as per the Challan issued on 02.01.1992. Without obtaining the permission of the Court, such deposit of the amount appears to be due to inadvertance. Learned District Judge has rightly considered the same and observed that the amount has been deposited without obtaining the order from the Court. Without obtaining the order from the Court, the Deposit of the amount might be irregular. But, such an irregularity is not an incurable one so as to affect the very deposit. The contention urged that the deposit is not in compliance of Order 34 Rule 5 C.P.C does not merit acceptance.
16. Learned counsel for the Revision Petitioner has submitted that the total amount involved at the time of deposit is Rs. 34,160.95. As noted earlier, after issuance of Challan on 24.01.1992, an amount of Rs. 32,173/- was deposited on 30.01.1992. Learned counsel for the Revision Petitioner/Decree Holder has submitted that the amount deposited is insufficient to discharge the Decree and hence, the deposit is not in proper compliance of Ordre 34 Rule 5 C.P.C. It is submitted that the amount deposited is not sufficient to discharge the entire amount. It is also submitted that if the Court had considered the same, by granting permission the Court would have ascertained the correct amount payable. The irregularity in deposit of the amount has resulted in depositing the lesser amount and that the same cannot be accepted as in compliance of Ordre 34 Rule 5 C.P.C.
17. I.A.No. 274 of 1991 was filed under Order 34 Rule 5 and 151 C.P.C praying to permit the Judgment Debtor to deposit the sum of Rs. 32,172.45 into the Sub-Court, Dindigul or any amount that may be determined as due. Thus, the Judgment Debtor has only prayed to ascertain the amount and sought the permission of the Court to deposit the amount of Rs. 32,172.45 into the Sub-Court, Dindigul. The balance amount is only a short amount. The deposit of lesser amount does not indicate any unwillingness to pay the correct amount. The Judgment Debtor has only prayed permission to deposit the amount and requesting the Court to determine any amount payable. Hence, the contention that the deposit of the lesser amount is not in proper compliance of Order 34 Rule 5 C.P.C has no merits.
Page 2192
18. The main contention urged is that under Order 34 Rule 5 C.P.C, the amount is to be deposited before the Confirmation of Sale. The Sale was confirmed on 01.07.1991. C.M.A. No. 33 of 1991 was filed in the District Court, Dindigul. I.A. No. 274 of 1991 was filed on 03.12.1991. The amount was deposited on 24.01.1992. Submitting that the amount was deposited on 24.01.1992 long after the confirmation of the Sale, learned counsel has submitted that the deposit of the amount after the confirmation of the Sale and without obtaining the permission of the Court is not in proper compliance of Order 34 Rule 5 C.P.C. Order 34 Rule 5(1) C.P.C recognised the right of the Mortgagors to redeem the Mortgage at any time before the Confirmation of Sale made in pursuance of the Final Decree passed in a Suit for Sale. The Judgment Debtor is required to make a deposit of all amounts due in the Court on or before the date fixed or at any time before the Confirmation of the Sale.
19. At this juncture, we may recapitulate which we have already referred. The Sale was confirmed on 01.07.1991. On the same day, the Application filed under Order 21 Rule 90 C.P.C to set aside the Sale was rejected. As against the order of Rejection of the Application under Order 21 Rule 90 C.P.C, C.M.A. No. 33 of 1991 was filed before the District Court. I.A. No. 274 of 1991 - Under Order 34 Rule 5 C.P.C seeking the permission of the Court to deposit the amount was filed on 03.12.1991 and the amount was deposited on 24.01.1992.
20. Can such a deposit made on 24.01.1992 after the Confirmation of the Sale on 01.07.1991 is proper compliance of Order 34 Rule 5 C.P.C is the point arising for consideration. It is well settled that on the dismissal of the Petition to set aside the Sale, when the Appeal was filed and pending, the Mortgagor is entitled to make the deposit during the pendency of the Appeal and get the Sale set aside.
21. An identical situation arose in the decision reported in U. Nilan v. Kannayyan (Dead) through L.Rs. . Referring to number of decisions, the Supreme Court has held that the Application for deposit of Mortgage Amount could be made during the pendency of the Appeal filed by the Judgment Debtor against an order passed by the Executing Court, rejecting the Application for setting aside the Sale. The Supreme Court has held thus:-
"...Civil Procedure Code, 1908 - Order 34 Rule 5 and Order 21 Rule 92(1) & 90 - Application under Order 34 Rule 5 for deposit of balance mortgage money would be maintainable even after confirmation of sale but during pendency of appeal filed by Judgment-debtor against an order passed by executing Court rejecting application for setting aside the sale effected in execution of Decree passed in mortgage suit or against an order rejecting the Application for restoration of application for setting aside the sale - Sale is deemed to be absolute not on confirmation of sale but on and from the date of disposal of such appeal, if any - Moreover the application for deposit of mortgage money does not become infructuous on rejection of Page 2193 application to set aside the sale on merits - Limitation period of three years under Limitation Act for making an application for delivery of possession under Order 21 Rule 95 C.P.C should be reckoned from the date the sale is deemed to be absolute...."
22. Giving anxious consideration to the submissions, the Supreme Court has also bserved that adversity of a person is not a boon for others. The Supreme Court has observed, "Adversity of a person is not a boon for others. If a person in stringent financial conditions had taken the loan and placed his properties as security therefor, the situation cannot be exploited by the person who had advanced the loan. The Court seeks to protect the person affected by adverse circumstances from being a victim of exploitation. It is this philosophy which is followed by the Court in allowing that person to redeem his properties by making the deposit under Order 34 Rule 5 C.P.C."
23. The Supreme Court has referred to number of decisions including A.I.R. 1987 MADRAS 27, which is relied upon by the Revision Petitioner/Decree Holder. In the said decision, it was observed that while the Appeal was pending with the Confirmation of the Sale, the issuance of the Sale Certificate would be in a nebulous state. In the said decision, it was held, "that an application under Order 34 Rule 5 would be maintainable during the pendency of the appeal filed by the Judgment - Debtor against an order passed by the Executing Court refusing to set aside the sale effected in execution of the Decree passed in the mortgage Suit. It was further held that although as a result of the confirmation of sale and the issue of a sale certificate, the auction purchaser got title to the property and the title of the Judgment - Debtor was lost but since the sale was subject to the final result of the petition, filed by the Judgment-Debtor under Order 21 Rule 90 C.P.C, the confirmation of sale and the sale certificate issued thereafter would also be subject to the result of that petition. Similarly, if an appeal was pending against an order refusing to set aside the sale, the whole situation relating to confirmation of Sale and 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 Decree passed in the mortgage suit...."
24. In the above decision - , the Supreme Court has also referred to the earlier decision of the Supreme Court wherein 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 C.P.C but it would attain finality only on the disposal of the Appeal if any filed against an order refusing to set aside the Sale.
25. In the decision reported in N. Krishnamoorthy v. Ramaswamy Chettiar on the dismissal of the Petition to set aside the sale, Page 2194 a Revision Petition was filed. In the said decision, the High Court has held that the Mortgagor is entitled to make the deposit under Order 34 Rule 5 C.P.C even during the pendency of Revision Petition and get the Sale set aside. In the said decision, the Court held thus:
"When a Revision is pending against an order dismissing an application to set aside a sale, it is open to the mortgagor to invoke the provisions of Order 34 Rule 5 C.P.C and deposit the amount due as per that Rule and thereby redeem the mortgage after setting aside the sale. A revision is also a limb or appellate jurisdiction exercised by a Superior Court. Under Section 115, High Court is empowered to exercise its jurisdiction in certain matters. The jurisdiction of High Court is circumscribed by the provisions of Section 115. That would not however mean that in a revision, the proceeding in the Court below does not continue and it has come to an end with the order made by the lower appellate Court, exercising the appellate jurisdiction. Once a revision petition is admitted, High Court has got jurisdiction to set aside that order, if it falls within the Scope of Section 115...."
26. Thus, it is well settled that during the pendency of the Appeal, the Mortgagor is entitled to make the deposit under Order 34 Rule 5 C.P.C. In the case in hand, when the Appeal C.M.A.No. 33 of 1991 was pending, the confirmation of the sale and issuance of the Sale Certificate were only in nebulous state, it cannot be said that merely because of confirmation of sale, the Judgment Debtor was not entitled to deposit the amount.
27. As noted earlier, in execution of the Decree in O.S.No. 683 of 1978, the property was sold in the Public Auction in E.P. No. 73 of 1987 on 03.09.1990. The Plaintiff/Decree Holder has paid the amount of Rs. 32,470/- to the Decree Holders in E.P. No. 73 of 1987. Hence, in C.M.A. No. 33 of 1991, the Plaintiff/Decree Holder has filed a separate calculation memo showing the amount of Rs. 32,470/- payable by the First Respondent to the Plaintiff, which was paid by the Plaintiff towards the discharge of Decree in E.P. No. 73 of 1987 in O.S. No. 683 of 1978. Much contentions have been advanced by the First Defendant that when the Confirmation of Sale was nebulous, the Plaintiff was not right in paying the Decree amount in E.P. No. 73 of 1987. There is no denying that the amount was paid to the Decree Holders in E.P. No. 73 of 1987 in O.S. No. 683 of 1978. No doubt, the Judgment Debtor is bound to pay the amount to the Plaintiff. But, the question arises whether the amount could be tagged to the amount payable under this Decree. Confirmation of Sale is yet to reach the finality. If the Appeal is dismissed upholding the Court Auction sale at that juncture, question of payment of Decree Amount in E.P. No. 73 of 1987 would arise. Learned District Judge has also not expressed any view in this aspect, but only stated that the Appeal between the parties is still subsisting and the matter is yet to arrive at the finality. The Decree amount paid by the Plaintiff/Decree Holder in E.P. No. 73 of 1987 could be determined at the time of final hearing in C.M.A. No. 33 of 1991. 28. Much contentions have been advanced by the First Respondent/Judgment Debtor that the Decree Holder has tried to take advantage of the misfortune of the Judgment Debtor and that the valuable properties have been sold for a Page 2195 meagre amount of Rs. 20,200/-. In this regard, learned counsel for the Judgment Debtor has drawn the attention of the Court to E.P.73 of 1987 and submitted that even the Court has valued the property to Rs. 70,000/-. While so, the properties have been sold for a meagre amount of Rs. 20,200/-. The Application filed under Order 21 Rule 90 C.P.C alleging fraud and irregularity in the Sale was rejected, against which C.M.A. No. 33 of 1991 has been filed and pending. While so, it would not be appropriate to express any view on the points raised regarding the irregularities in the Court Auction Sale. The same is the point for determination in C.M.A. No. 33 of 1991.
29. Learned District Judge has rightly found that the Appeal is the continuation of the lis between the parties and that the Judgment Debtor is entitled to make the Decree amount during the pendency of C.M.A. No. 33 of 1991. The Impugned Order does not suffer from material irregularity or serious infirmity warranting interference. This Civil Revision Petition is liable to be dismissed issuing appropriate directions to the learned District Judge, Dindigul to dispose of the Appeal in C.M.A. No. 33 of 1991 expeditiously.
30. When the Court was about to pass the order on 03.10.2005, both the Husband of the Revision Petitioner - Arumugam Pillai and First Respondent - Balasubramaniam are present in the Court. The Petitioner represented by counsel Mr.D.Rajendran, First Respondent represented by counsel Mr.T.V.Sivakumar and Second Respondent represented by counsel Ms.T.Uma Maheswari also.
31. The First Respondent - Balasubramaniam has stated that he is prepared to pay the amount due to the Decree Holder and the Revision Petitioner's Husband - Arumugam Pillai has agreed to receive the same. In the Open Court, there was negotiations between the parties themselves and the Parties have agreed as under:-
i. that the amount payable in E.P.NO. 73 of 1987 in O.S. No. 683 of 1978 i.e. Rs. 32,470/- is to be paid to the Petitioner/Decree Holder with interest at the rate of 12% per annum on Rs. 32,470/- from 01.07.1991 (date of deposit) till the date of payment;
ii.Amount of Rs. 32,173/- has been deposited on 24.01.1992 in E.P. No. 17 of 1986. The amount was deposited in I.A. No. 274 of 1991 on 24.01.1992. If that amount had been deposited in the Fixed Deposit, that amount and the accrued interest (till this date) is payable to the Decree Holder. If the amount had not been deposited in the Fixed Deposit and kept only in C.C.D, the First Respondent - Balasubramaniam is to pay interest at the rate of 6% per annum on Rs. 32,173/- from 24.01.1992 to 18.09.1997;
iii.The First Respondent - Balasubramaniam has agreed to pay the amount on or before 31.01.2006.
iv.Both parties are directed to report before the District Court, Dindigul on 15.02.2006 and report about the Settlement by filing necessary Memo. On such Memo of Settlement/Payment Report filed before the District Court, learned District Judge is directed to return all the documents of Title and other relevant documents to the parties (in turn to the First Respondent - Judgment Debtor - Balasubramaniam). If the documents are not Page 2196 available in District Court, Dindigul, directions may be issued to the Sub-Court, Dindigul to return the documents to the First Respondent;
v.The Revision Petitioner is directed to issue proper receipts for payment of money by the First Respondent;
vi.Both parties have agreed that the other Decree holder in E.P. No. 73 of 1987 viz., Karthikeyani would not have right and entitlement to proceed with the property in any manner.
32. With the above directions, this Civil Revision Petition is disposed of. In the circumstances of the case, there is no order as to costs.