Madras High Court
Basker vs Ponnammal ....1St on 25 April, 2022
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.04.2022
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(NPD)(MD).No.1485 of 2012
and Tr.CMA(MD).No.376 of 2022
and MP(MD).No.1 of 2012 and CMP(MD).No.3283 of 2022
CRP(MD).No.1485 of 2012
Basker ....Petitioner/3rd Respondent
/Auction Purchaser
Vs
1.Ponnammal ....1st Respondent/1st Respondent
Decree Holder
2.Ramaraj ...2nd Respondent/2nd Respondent
/Decree Holder
3.Rengasamy ...3rd Respondent/Petitioner
/Judgement Debtor
Tr.CMA(MD).No.376 of 2022
Basker ...Petitioner/Petitioner in CRP
/Appellant in CMA
Vs
1.Rengasamy Muthuraja ...1 Respondent /3rd Respondent in CRP
st
/1st Respondent in CMA
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
2.Ponnammal (died ) ....2nd Respondent/1st Respondent in CRP
3.Ramaraj ..3rd Respondent/2nd Respondent in CRP
/2nd Respondent in CMA
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.
PRAYER in 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.
(In both petitions):
For Petitioner : Mr.Jerin Mathew
For Mr.P.Jayaprakash Narayan
For R2 : No appearance
For R3 : Mr.G.Prabhu Rajadurai
For Mr.K.Sivabalan
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
COMMON ORDER
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
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C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
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. 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.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
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.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
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
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
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. 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
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
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
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C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
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.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.
25.04.2022
Index : Yes/No
Internet : Yes/No
msa
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
To
1. The I Additional District Judge
Trichirappalli
2.The I Additional Subordinate Judge
Trichirappalli
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1485 of 2012 and Tr.CMA(MD).No.376 of 2022
R.VIJAYAKUMAR, J
msa
C.R.P.(NPD)(MD).No.1485 of 2012
and Tr.CMA(MD).No.376 of 2022
and MP(MD).No.1 of 2012 and CMP(MD).No.3283 of 2022
25.04.2022
https://www.mhc.tn.gov.in/judis
