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Judgment
Mohan, J.—The facts leading to the C.M.A. are as follows : The following three items of property, namely, (1) 146-A, Muthu Naicker St,
Tuticorin, (2) 124-A, North Cotton Road, Tuticorin, and (3) 15-B, North Cotton Road, Tuticorin, were mortgaged in favour of the first
respondent State Bank of Tuticorin. The first respondent filed O.S.99 of 1972, on the file of the Additional Subordinate Judge, Tuticorin, on the
basis of the equitable mortgage executed by the appellant. That suit ended in a preliminary decree on 11th December, 1973. Thereafter, on 5th
September, 1974 a final decree was passed. E.P.52 of 1977 was levied by the decree-holder for the sale of the hypotheca. On 14th November,
1979, they were sold in court auction. Item 1 was sold for a sum of Rs. 40,100 in favour of Murugesan, the 11th respondent therein. Item 2 was
sold for a sum of Rs. 30,100 in favour of the said Murugesan; item 3 fetched Rs. 37,800 in the sale to the 13th respondent herein. On 12th
December, 1979 the appellant filed an application under O. 21, R. 90, C.P.C., for setting aside the sale. That application was unnumbered. Along
with the same application, he preferred E.A. 55 of 1980 to dispense with security. Pending E.A. 55 of 1980, another application was filed by the
appellant in E.A.56 of 1980 for stay of confirmation of sale. E.A. 55 of 1980 was dismissed, as not pressed on 13th July, 1982, while the
application for stay of confirmation was dismissed on 26th July, 1982. However, under Exs.B1 to B9, dated 31st August, 1981, the appellant sold
items 4 and 2, namely, 146-A, Muthu Naicken St., Tuticorin and 124-A, North Cotton Road, Tuticorin in favour of third parties. On 10th
September, 1981 he filed E.A. 271 of 1981 under O. 34, R. 5, C.P.C., for setting aside the sale after depositing a sum of Rs. 1,13,855. That
represents sale consideration plus poundage charges and all other expenses. It is not denied before me that this amount of Rs. 1,13,855, came to
be deposited from out of the sale proceeds under Exs.B1 to B9. Thereafter, E.A.119 of 1982 was filed by the 11th respondent, namely, the
purchaser of the above items, calling upon the appellant to elect either to prosecute E.A. 271 of 1981 under O. 34, R. 5, of the application or
under O. 21, R. 90, C.P.C. That application was dismissed as not pressed. E.A. 271 of 1981 itself was taken up and the learned Subordinate
Judge dismissed the same on 26th July, 1982. Thereafter E.A. 136 of 1982, was preferred by the decree-holder on 29th July, 1982, for the issue
of a cheque for Rs. 98,097-82. A cheque was issued notwithstanding the objection of the judgment-debtor. It is under these circumstances, the
C.M.A. has come to be preferred, aggrieved by the dismissal of E.A. 271 of 1981. It is the contention of Mr. N. Sivamani, learned counsel for the
appellant, that till the sale pursuant to the final decree in the mortgage suit is confirmed, the appellant is entitled to redeem the property. This is
because of the well accepted principle ''once a mortgage always a mortgage''. Therefore, where such an application has come to be filed under O.
34, R.5, whatever might have been the fate of the earlier application, in so far as there was no confirmation of the sale that took place on 14th
November, 1979, redemption as of right, should have been allowed. The court below was wrong in dismissing that application.
Mr. M.R. Narayanaswami, learned counsel for respondent 11 (auction-purchaser) would submit that confirmation under O. 21. R. 92, C.P.C.,
is a mere ministerial act. No actual order is necessary. In the absence of a valid application under O. 21, R. 89, or R. 90, the Court has no other
option but to confirm the sale. Even if there is no such order, by mere efflux of time by 30 days, in the absence of such of those applications the
sate gets confirmed and thereafter the auction-purchaser gets an indefeasible right. That is precisely what has been laid down in Ramaswami Iyer v.
Komalavalliammal 1940-2-M.L.J. 1055 = 52 L.W. 955.
The mere filing of an application on 13th December, 1979 will not be tantamount to a valid application under O. 21, R. 90, because the party
himself did not understand the application that way. He wanted merely the dispensing with of security in E.A. 55 of 1980. Where therefore such a
valid application not being there, the appellant cannot enlarge the limitation of 30 days and seek to file an application on 10th September, 1981 and
then contend that he has got right of redemption.
The further submission of Mr. M.R. Narayanswami, learned counsel for the 11th respondent (auction-purchaser) is, should this Court be
inclined to allow the C.M.A., in any event the right of his client has to be protected from the attachments which have come to be effected over the
amount deposited by the appellant, namely, Rs. 1,13,855. This is because, in law, the auction-purchaser is entitled to the money which is due to
him. Therefore, any order passed in the C.M.A. must enure to the auction-purchaser without reference to the attachments.
I have given the details as to the facts at some length. From the narration, it is clear the sale took place on 14th November, 1979. It cannot be
gainsaid that confirmation of court auction sale under O. 21, R. 92, C.P.C., is a mere ministerial act. In the absence of an application under O. 21,
R. 89 or O. 21, R. 90, the court has no other option but to confirm the sale. That is very clear by a reading of O. 21, R. 92 which is extracted
below:
Sale when to become absolute or to be set aside--(1) 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 thereupon the sale shall become absolute;
Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of
such property, the court shall not confirm such sale until the final disposal of such claim or objection.
(2) Where such application is made and allowed, and where, in the case of an application under R. 89, the deposit required by that rule is made
within 30 days from the date of sale, or in cases where the amount deposited under R. 89 is found to be deficient owing to any clerical or
arithmetical mistake on the part of the depositor and such deficiency has been made good within such time, as may be fixed by the court, the court
shall make an order setting aside the sale.
Madras High Court amendment:--
(2) Where such application is made and allowed, and where, in the case of an application under R. 89, the deposit required by that rule is made
within thirty days from the date of sale, and in case where the amount deposited has been diminished owing to any cause not within the control of
the depositor such deficiency has been made good within such time as may be fixed by the court, the court shall make an order setting aside the
sale;
Provided that, no order shall be made unless notice of the application has been given to all persons affected thereby.
(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
(4) Where a third party challenges the judgment-debtor''s title by filing a suit against the auction purchaser, the decree-holder and the judgment-
debtor shall be necessary parties to the suit.
(5) If the suit referred to in sub-R. (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction purchaser, and where
such an order is passed, the execution proceeding in which the sale had been held, shall, unless the court otherwise directs, be revived at the stage
at which the sale was ordered.
In Ramaswami Iyer v. Komalavalli Ammal 1940-2-M.L.J. 1055 = 52 L.W. 955, it was held that by mere efflux of 30 days, in the absence of
such an application the sale gets automatically confirmed and thereafter the auction purchaser gets absolute title to the property, At page 1058, it
was observed--
It was argued for the petitioner that when a judgment debtor''s property is sold in court auction and no application to set aside the sale has been
made within 30 days under O. 21 Rr. 89, 90 and 91, he has no saleable interest left in the property, as it must be deemed to have passed under
the sale to the auction purchaser. It was pointed out that confirmation by court is a mere ministerial act as the court is bound to confirm the sale in
such circumstances under O. 21, R. 92. There are no doubt, indications in the provisions of the Civil Procedure Code, that an auction purchaser at
a court sale does not obtain title to the property immediately on his purchase. O.21, R.92(1) provides:
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 thereupon the sale shall become absolute.
Under S. 316 of the old C.P.C. of 1882 the title to the property vested in the, purchaser only from the date of the sale certificate while under S. 65
of the present Code, when the sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes absolute. Again under O. 21, R. 89, judgment-debtor whose property has been sold
has been entitled to apply to set aside the sale as the person ''owning such property, in spite of the sale. In Pandurang Laxman v. Govinda Dada 40
Bom. 557 the judgment-debtor effected a private sale of the property sold in court auction before such sale was confirmed, and the position was
held to be not essentially different from a case where there is nothing more than an agreement for sale between the parties, as the conveyance, in
such circumstances, could not operate unless the auction sale was set aside. In Sundaram v. Mamsa Mavuthar 40 M.L.J. 497 = 44 Mad. 554 =
13 L.W. 498 (F.B.) a Full Bench of this Court had to consider the question whether a judgment-debtor who after the sale of his property in court-
auction, sold it privately to a third party was entitled to apply under O. 21, R. 89. All the learned Judges proceeded on the view that after a court
sale, the judgment-debtor continues to be the owner of the property, though they expressed somewhat different opinions as to his position when he
effects also a private sale of such property after the court sale. Wallis, C.J. was of opinion that the private sale being valid as between the parties
though it would operate only subject to the auction sale being set aside, the judgment-debtor could no longer be regarded as the owner of the
property, but was entitled to apply as a person holding an interest in the property by virtue of a title acquired before the court sale. Old field and
Kumaraswami Sastri, JJ., took the view that the judgment-debtor, in such circumstances, continued to be the owner notwithstanding the court sale
and the private sale. It is thus clear that a judgment-debtor whose property is sold does not cease to be its owner capable of selling it effectively
under certain conditions, so long as he can apply to have the sale set aside, that is to say, till the expiration of 30 days from the date of sale. But,
what is the position after that period? Can he still dispose of the property so as to pass an effective title to the transferee against the auction
purchaser? In other words, has he a ''saleable interest'' in the property? Whatever could be said in support of an affirmative answer to this
question, if the matter were res integra, we consider that the decision of the Privy Council in Zamindar Polavaram v. Maharaja of Pittapur 71
M.L.J. 347 = L.R. 63 I.A. 384 = 59 Mad 910 = 33 L.W. 95 (P.C.) requires that it should be answered in the negative. In that case, a decree-
holder having purchased certain properties of his judgment-debtor at a court sale in execution of a mortgage decree entered into a compromise
with the judgment-debtor''s guardian under which one of the properties purchased was to be left to the judgment-debtor in consideration of the
latter agreeing to pay a certain sum and to abstain from raising objections to the sale of the properties. The compromise was sanctioned by the
Court which confirmed the auction sale, with the exception of the property which was agreed to be left to the judgment-debtor, and issued a sale
certificate covering the other properties. A mortgage of that property subsequently executed for the sum agreed to be paid under the compromise
having turned out to be inoperative for want of due attestation, the question arose whether the compromise amounted to a sale by the decree-
holder purchaser in respect of which a vendor''s lien for unpaid purchase money could be claimed. In upholding the claim and overruling the
objection that there could be no sale by the auction purchaser to the judgment-debtor as the title to the property in question never passed to the
former under the auction sale which was not confirmed in respect of that property; their Lordships observed:-
That village, along with other mortgaged property, was, as stated, sold to the plaintiff on 28th October, 1920; and the period within which the
judgment-debtor could apply to the court for setting aside the sale was thirty days from the date of the sale. During the period no such application
was made to him, and the title of the auction purchaser became unimpeachable...It is obvious that after the expiry of the statutory period for setting
aside the sale, there was no person who could question the title of the auction purchaser and a certificate of sale granted by the court would in such
case be a formal document of title. In the absence of an order setting aside the sale the court is bound to confirm it, and the law does not prescribe
any special period for an application for an order confirmation.
(Italics ours.)
These observations are, in our view, decisive of the point now under consideration. They show that after the expiry of the period for an application
to set aside an auction sale, the auction purchaser can effectively sell the property purchased even in the absence of a confirmation of the auction
sale by the court or, in other words, that he has a ''saleable interest'' in the property. If he has acquired such interest, it is difficult to see how the
judgment-debtor can also be said to have a saleable interest in the same property, there being no question here of subordinate interests carved out
of the property being owned by different persons.
But the question before us is slightly different. Of course, if there was no application till 14th December, 1979, this ruling would clearly apply. But,
however, on 13th December, 1979, the appellant had filed an application under O. 21, R. 90. No doubt, he also preferred E.A. 55 of 1980 for
dispensing with the security. Such an application to my mind, was wholly unnecessary, because O. 21 R. 90 (Madras Amendment) contains the
following proviso:
Provided that the court may after giving notice to the applicant, call upon him, before admitting the application, either to furnish security to the
satisfaction of the court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever is less, or to deposit
such amount in court.
This application should not prejudice the right of the appellant, because, he was purely over anxious. May be, he had mortgaged all the properties
that were owned by him. Should the court call upon him to furnish security, he would be in a fix and therefore, he was rather over anxious to file
E.A. 55 of 1980, requesting the court that the security may be dispensed with. By that it is not possible to construe the application filed on 13th
December, 1979, as not an application under O. 21, R. 90. I have perused the original of that unnumbered application. That was specifically under
O. 21 R. 90 Material irregularities like there being no proper publication, the sale consideration being low, the value of the judgment-debtor not
being stated in the sale proclamation, the injury suffered by the judgment-debtor have all been stated. Therefore, I am unable to agree with Mr.
M.R. Narayanaswami, the learned counsel for the 11th respondent-auction-purchaser, that the appellant himself did not understand the
unnumbered application filed on 13th December, 1979 as one under O. 21, R. 90. On the contrary, it was very much an application under O. 21,
R. 90. This unnumbered application as such from the endorsement made on 13th July, 1982 was dismissed as not pressed. I may extract the very
return itself:-
Returned. E.A. 55--80 to dispense with security is dismissed as not pressed. Hence, this petition is returned.
The legal effect of it was that till 13th July, 1982, the court could not confirm the sale under O. 21, R. 92; nor again will the principle laid down in
Ramaswami Iyer v. Komalavalli Ammal (1940) 2 M.L.J. 1053 = 52 L.W. 955, would apply, namely, that by efflux of 30 days time the sale gets
automatically confirmed, because as I said above before the expiry of 30 days the application, dated 13th December, 1979 had come to be filed.
Under these circumstances, O. 34, R. 5, fully comes into play. This is because of the salutary principle, ''once a mortgage always a mortgage.''
It is also well settled that O. 34, C.P.C., is a complete Code in itself as far as the mortgage decrees are concerned. Where the appellant has
fully complied with the terms of this rule, namely, R. 5 of O. 34, I am unable to see how he will be disabled from redeeming the properties.
Therefore, the sale will have to be necessarily set aside and an order will follow in terms of O. 34, R. 5, C.P.C., in favour of the appellant. The
result of this will be, the parties are relegated to the position prior to 14th November, 1979, namely, the date on which the sale took place. That
being so, the auction-purchaser, namely, respondents 11 and 12 in the C.M.A., will be entitled to draw from out of the sum of Rs. 1,13,855, the
moneys which they are entitled to under O. 34, R. 5(2). The order enabling respondents 11 and 12, to withdraw amounts is passed,
notwithstanding the later attachments (later than 10th September, 1981). This is because only if the money is available, the attachments can subsist.
In passing this order there is no necessity to hear the attaching creditors, because, as I said above, the position of the parties is relegated to the
date 14th November, 1979. Notwithstanding all this, it is not to be understood that the money realised by the decree-holder is in any way to be
refunded. The above orders are passed without prejudice to the order made in E.A.136 of 1982 in favour of the decree-holder. The C.M.A. is
allowed. No costs.