@JUDGMENTTAG-ORDER
Ratnam, J.@mdashThis Civil Revision Petition has been preferred by the auction purchaser in execution of the decree in O.S. No. 54 of 1968,
Sub Court, Chidambaram, against the order passed in E.A. No. 280 of 1980 allowing the application filed by the 1st respondent herein under O.
34, R. 5, CPC (hereinafter referred to as the Code) praying that the Court auction sale in favour of the petitioner in 6.3.1972 should be set aside.
Briefly stated, the circumstances, under which the 1st respondent preferred E.A. No. 280 of 1981 are as follows:-
In O.S. No. 54 of 1968, instituted by the 2nd respondent herein against K.S. Venkatarama Iyer and Ramanatha Iyer, as Managers of the joint
Hindu Family, to enforce a security bond dated 20.7.1966 executed by them, a preliminary decree was passed on 7.11.1968, which was also
followed by a final decree on 10.11.1969. In execution of the decree so obtained, the 2nd respondent brought the property subjected to security
to sale in E.P. No. 24 of 1970 in O.S. No. 54 of 1968. During the pendency of the execution proceedings, Venkatarama Iyer died on 17.9.1970
and the 1st respondent herein and others were brought on record as his legal representatives. Subsequently, in E.P. No. 24 of 1970, the property
secured was purchased by the petitioner on 6.3.1972 and for confirmation of the J sale, it was posted to 10.4.1972. Thereafter, numerous
proceedings were taken under the provisions of the Code as well as those under the Debt Relief Acts and it is not necessary to notice all those
proceedings in detail, except two of them, as would be noticed later. According to the case of the 1st respondent, as the son of deceased
Venkatarama Iyer, who was impleaded in the course of the execution proceedings also, he is entitled to redeem the property sold in court auction
on 6.3.1972, as the sale had remained unconfirmed. Stating that he had paid a sum of Rs. 30,000/- to the 2nd respondent/decree holder and he
had also agreed to record full satisfaction of the decree, the 1st respondent claimed that the Court sale in favour of the petitioner is liable to be set
aside under the provisions of O. 34, R. 5 of the Code, as he had also deposited a sum of Rs. 1816/- into Court towards profits and poundage to
the petitioner.
2. The application so made, was resisted by the petitioner on the ground that the prior proceedings unsuccessfully taken by the 1st respondent
resulted in an automatic confirmation of the sale held in his favour on 6.3.1972 and the application purporting to be under O. 34, R. 5 of the Code
was not maintainable. The payment by the 1st respondent to the 2nd respondent/decree holder was also disputed. Claiming that he had become
the absolute owner of the property purchased in court auction, the petitioner stated that the provisions of O. 34, R. 5 of the Code were
inapplicable. It was also pleaded that as per the provisions of O. 34, R. 5 of the Code, the amount as envisaged thereunder must be deposited into
Court as a condition precedent. In an additional counter filed by the petitioner, a dispute was raised regarding the correctness of the amounts
stated to have been paid by the 1st respondent and he reiterated that the dismissal of the earlier proceedings to set aside the sale, resulting in the
confirmation of the court sale, would preclude the 1st respondent from seeking relief under O. 34, R. 5 of the Code.
3. On a consideration of the rival claims no put forward, the learned Subordinate Judge found that the 1st respondent had deposited the entire
amount of Rs. 47,180/- payable in accordance with the orders passed in E.A. No. 38 of 1984. Considering the entitlement of the 1st respondent
to the relief of setting aside the court sale prayed for, the learned Subordinate Judge found that as a result of the several earlier proceedings, the
court sale in favour of the petitioner, had remained unconfirmed and that as the 1st respondent had deposited the correct amount as per the
provisions of O. 34, R. 5 of the Code, the sale in favour of the petitioner, deserved to be set aside, the correctness of which is questioned in this
Civil Revision Petition.
4. Learned Counsel for the petitioner first contended that as a result of the earlier unsuccessful proceedings taken by the 1st respondent and others
to set at naught the court sale under the provisions of the Code, the court sale in favour of the petitioner must be deemed to have been
automatically confirmed without even a need for the Court to pass an order to that effect and under those circumstances, the application under O.
34, R. 5 of the Code, filed by the 1st respondent on 24.12.1981, could not have been entertained. Reference in this connection was also made to
the observations of some decisions to the effect that the confirmation of a court sale is more or less automatic and need not even be prayed for.
5. On the other hand, Learned Counsel for the 1st respondent, drawing attention to the provisions of O. 21, R. 92 of the Code and relying upon
the decisions reported in V.S. Subramania Asari Vs. Ramaswami Pillai, contended that O. 21, R. 92 of the Code contemplates the passing of an
order of confirmation, on the passing of which the sale becomes absolute and not the lapse of 30 days that confirms the sale but the passing of an
order, which cannot be passed within 30 days. In addition, referring to the prior proceedings in this very case, which had culminated in Neelambal
v. Mohanarama Chettiar (1980 (II) M.L.J. 1) and Neelambal v. Mohanarama Chettiar (1984 (II) M.L.J. 264), Learned Counsel further submitted
that whatever might have been the effect of the failure of the steps earlier taken by the 1st respondent to have the court sale in favour of the
petitioner set aside, the confirmation was set aside on 20.7.1983 by the order passed by this Court in Neelambal v. Mohanarama Chettiar (1984
(II) M.L.J. 264) and as the application filed by the 1st respondent under O. 34, R. 5 of the Code, was already pending and the confirmation of the
sale had also been set aside, the theory of automatic confirmation of the sale did not have any application whatever.
6. In order to appreciate the aforesaid contention, it would be necessary to make a brief reference to the result of the proceedings earlier taken on
two occassions, as stated earlier. In Neelambal v. Mohanarama Chettiar (1980 (II) M.L.J. 1), this Court remitted the proceedings taken out in
E.A. Nos. 14 and 33 of 1979 in O.S. No. 54 of 1968 under Ss. 19 and 16 of Tamil Nadu Act 38 of 1972, on the ground that it would be
necessary to investigate whether the petitioner therein was entitled to claim the benefits of the provision of the Act, referred to earlier. Again, in
Neelambal v. Mohanarama Chettiar (1984(II) M.L.J. 264), with reference to the very court sale in favour of the petitioner herein, it was held that
when other proceedings claiming benefits under Debt Relief Acts were pending, which may result in affecting the rights of parties even to execute
the decree, it would not be appropriated proceed to confirm the sale and in that view, the confirmation of the sale in favour of the petitioner also
was set aside on 27.3.1983. It is thus seen that, in this case, even if as a result of the earlier unsuccessful proceedings taken out by the 1st
respondent and others, the court auction sale in favour of the petitioner, should be regarded as having been confirmed, such confirmation had been
clearly set at naught by the decision in Neelambal v. Mohanarama Chettiar (1984 (II) M.L.J. 264). This would, therefore, be a case where, though
the sale had been confirmed earlier, such confirmation had been set aside and that too at a point of time when the application under O. 34, R. 5 of
the Code filed by the 1st respondent was pending. The resulting position, therefore, is that the court sale had remained unconfirmed, as the earlier
confirmation has been set aside and the application for setting aside the court sale under O. 34, R. 5 of the Code was already there in regard to an
unconfirmed court sale. In view of the adjudication is Neelambal v. Mohanarama Chettiar (1984 (II) M.L.J. 264) there to the effect that the
confirmation of the sale was set asdie, it is unnecessary to consider the other question whether there could be an automatic confirmation with
reference to the provisions of O. 21, R. 92 of the Code or not. Thus, on the facts and circumstances of this case, the sale remained unconfirmed
and the application filed by the 1st respondent under O. 34, R. 5 of the Code was also there and therefore, there is no substance in the contention
of the Learned Counsel for the petitioner that the application under O. 34, R. 5, was not entertainable, as the sale had already been confirmed.
7. Learned Counsel for the petitioner next contended referring to the provisions of O. 34, R. 5 of the Code that the entire amount payable in terms
of O. 34, R. 5 of the Code has not been deposited into court prior to the filing of the application and therefore, that application could not have
been entertained and dealt with. On the other hand, Learned Counsel for the 1st respondent pointed out that all that is contemplated by O. 34, R.
5 of the Code is that the entire amount should be deposited before confirmation and not necessarily before or at the time of the filing of the
application under O. 34, R. 5, of the Code and relied on the decision reported in Sevugam Chettiar v. Narayana Raja (1984 (II) M.L.J. 55 = 97
L.W. 328) and N. Krishnamurthy v. L.M.R.R.M. Ramasamy Chettiar (1991 T.L.N.J. 247).
8. From the record of proceedings, it is seen that no objection has been raised in regard to the correctness of the amount deposited by the 1st
respondent in the application taken out by him under O. 34, R. 5 of the Code. Whether the amount so deposited, should have been either prior to
the filing of the application, or at the time of the filing of the application, requires to be considered. In this case, apart from the amounts earlier
deposited, pursuant to the order passed in E.A. No. 338 of 1984, a challan for deposit was issued to the 1sr respondent and he had deposited the
amount at a point of time, when the sale had not been confirmed, though after the filing of the applicant under O. 34. R. 5 of the Code, on
24.12.1981. It is in this connection, an unreported judgment of a Division Bench consisting of Lionel Leach. C.J. and Krishna Rao J. in K.
Subramania Iyer v. K. Chidambaranatha Mudaliar (Deed). & ors. (C.M.A. No. 717 of 1941 - Judgment dated 9.12.1942), is relevant. There, the
decree holder bought the property for Rs. 1341/- and the total amount required to be deposited under O. 34, R. 5 of the Code, was Rs.
1465.15.0; but the judgment debtor deposited only Rs. 1369.7.3. From the judgment, it is seen that the total amount required had later been
deposited. Considering this, the Division Bench pointed out that the amount due under the decree was Rs. 1369.7.3. which was paid and the
balance of the decretal amount also having been paid into court, the application filed under O. 34, R. 5 of the Code, should be allowed. From the
facts of this case, it appears that through a larger sum should have been deposited even initially, but was not, and that had been made good later,
that would suffice to fulfil the requirements of O. 34, R. 5 of the Code. Apart from this, in Sevugam Chettiar v. Narayana Raja (1984 (II) M.L.J.
55 =97 L.W. 328) (at page 61), another Division Bench, while dealing with an argument that there ought to have been an actual deposit of the
amounts under O. 34, R. 5 of the Code before the application is filed, pointed out that so long as there is no confirmation of sale in the eye of law,
time is available for the judgment debtor to make the deposit and the process of deposit could be worked out until the confirmation of the sale
reaches finality. Depositing into court is not a matter of course and the Civil Rules of Practice lay down procedural aspect and the submission that
actual deposit must precede the very filing of the application, cannot be countenanced, was the view taken by the Division Bench. It was pointed
out that all that is necessary is that there must be a deposit and that deposit should be made before the confirmation of the sale. In this case, as
pointed out earlier, the sale had remained unconfirmed as a result of the adjudication in Neelambal v. Mohanarama Chettiar (1984 (II) M.L.J.
264) and the sale had nod been confirmed and consequently, the deposit made by the 1st respondent was in consonance with the requirements of
O. 34, R. 5 of the Code. Indeed in N. Krishnamurthy v. L.M.A.R.N. Ramaswamy Chettiar (1991 T.L.N.J. 247) it was held that even pending a
revision petition, arising out of the proceedings to seek aside the court sale, there could be no objection to the judgment debtor seeking permission
to invoke the provisions of O. 34, R. 5 of the Code and the permission prayed for, had also been granted. This is again on the footing that having
regard to the pendency of the proceeding to set aside the court sale, the confirmation is set at naught enabling the judgment debtor to have
recourse to the provisions of O. 34, R. 5 of the Code. The first contention of Learned Counsel for the petitioner cannot therefore, be accepted.
9. Lastly, Learned Counsel for the petitioner, relying upon Hukamchand Vs. Bansilal and Others, contended that there was no question of
extending the time for depositing the amount under O. 34, R. 5, and S. 148 of the Code, is inapplicable and again reiterated that there was an
automatic confirmation of the court sale in favour of the petitioner. In answer to this, Learned Counsel for the 1st respondent pointed out that at no
point of time praying for extension of time to deposit the amount and there was any request made by the 1st respondent as the amount could be
deposited any time prior to the confirmation of the Court sale, as laid down in M. Sevugan Chettiar v. Naraayana Raja 97 L.W. 328 = (1984 (II)
M.L.J. 55 at 61, the contention put forward, cannot be accepted, particularly in view of the decision in Smt. Periyakkal and Others Vs. Smt.
Dakshyani, explaining the decision in Hukamchand Vs. Bansilal and Others,
10. A careful consideration of the record of proceedings does not disclose that there was at any point of time any request made for extension of
time invoking the provisions of S. 148 of the Code. It is seen that the 1st respondent had approached the Court for the issue of a challan in E.A.
No. 338 of 1984 and after obtaining the challan, had also deposited the entire amount as per the provisions of O. 34, R. 5 of the Code. A faint
submission was attempted to be made by Learned Counsel for the petitioner to the effect that notice in E.A. No. 338 of 1984 had not been given.
Even under the Civil Rules of Practice, ordinarily, notice is given after the deposit is made and not always before. There is, therefore, no substance
in the feeble submission of Learned Counsel for the petitioner. In any event, it is seen that the petitioner has not pointedly raised any objection in
this regard either before a court below or even here and the petitioner cannot claim to have been subjected to any serious prejudice or injury on
this account. Further, in the decision reported in Smt. Periyakkal and Others Vs. Smt. Dakshyani, , the scope of the decision in Hukamchand Vs.
Bansilal and Others, ) has been clearly explained, as follows:-
In Hukamchand Vs. Bansilal and Others, the real question which was considered was, if a mortgaged property was sold in execution of a
mortgage decree and if the application to set aside the sale under O. 21, R. 90 was dismissed but time was granted by consent of parties for
depositing the decree amount etc. could time be extended for depositing the decretal amount etc. to avert the confirmation of sale under O. 34, R.
5,except with the consent of the parties? The answer was ''no''. The court said on the dismissal of an application under O. 21, R. 90, confirmation
of sale under O. 21, R. 92 had to follow as a matter of course. O. 34, R. 5 merely permitted the deposit to be made at any time before the
confirmation of the sale and there could be no question of extending the time for such deposit. If parties agreed to have the confirmation of sale
postponed, further postponement would be possible by agreement of parties only. The Court would have no say in the matter. S. 148, C.P.C.
would have no application.
At page 430, the Supreme Court observed thus:-
In the case before us, the situation is totally different. Unlike the case of Hukamchand Vs. Bansilal and Others, where there was a statutory
compulsion to confirm the sale on the dismissal of the application under O. 21, R. 90 and, therefore, postponement and further postponement of
the confirmation of the sale could only be by the consent of the parties, in the case before us, there was no statutory compulsion to dismiss the
application under O. 21, R. 90 in the absence of an agreement between the parties. The Court would have then decided the appeal arising out of
the application on the merits. The parties, however, entered into a compromise and invited the Court to make an order in terms of compromise,
which the Court did. The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to
extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to
prevent manifest injustice. True, the court would not rewrite a contract between the parties, but the court would relieve against a forfeiture clause.
And, where the contract of the parties has merged in the order of the Court, court''s freedom to act to further the ends of justice would surely not
stand curtailed. Nothing said in Hukumchand''s case militates against this view.
In view of the aforesaid observations explaining the scope of the decision in Hukamchand Vs. Bansilal and Others, there is no question of any
extension of time to the prejudice of the petitioner, as claimed by the Learned Counsel for the petitioner and under those circumstances, this
contention has also no substance. No other point was urged. Consequently, the Civil Revision Petition is dismissed with costs of the 1st
Respondent.
