Valli Ammal vs Subramania Iyer and Another

S. Ramachandra Iyer, C.J.—These Civil Revision Petitions arise out of an appellate order declining to set aside an execution sale held under a mortgage decree. The mortgagor''s application to set aside the sale was dismissed by the trial Court on the ground that one of the petitioners was absent and the other did not tender any evidence on the application. An appeal was filed by the judgment-debtors to the lower appellate Court against the order refusing to set aside the sale. During the pendency of that appeal, the mortgagors deposited in the appellate Court an amount in conformity, with the requirements of Order 34, Rule 5, Civil Procedure Code, and prayed for the setting aside of the sale. It must be noticed that notwithstanding the fact that the petition for setting aside the sale had been dismissed by the executing Court, the matter was at large before the appellate Court in appeal. It would, therefore follow that there was no final order of confirmation of sale before the appeal was disposed of. It is clear from the terms of Order 34, Rule 5, Civil Procedure Code, that so long as the sale had not been confirmed, it will be open to the mortgagors to deposit the amount due together with the solatium as prescribed therein and avoid the sale. This is what they did in the present case and they have therefore got a right to have the sale set aside. The lower appellate Court erred in not affording them that relief. The Civil Revision Petitions therefore succeed. The sale will be set aside 2nd the monies deposited into Court will be paid over to the decree-holder. Both the C.R Ps. are allowed with costs one set to be paid by the first respondent.