ORDER
B.N. Patnaik, J.
1. The 4th respondent and the 4th judgment-debtor in SFC (OP) No. 206/ 81 and E.P. 135/84 on the file of the District Court, Ernakulam, has preferred this revision against the order dated 19-12-1995 in E.A. 39/1995 arising out of the-said E.P. Respondent No. 1 herein, the Kerala Financial Corporation (hereinafter called the Corporation) is the decree-holder. Respondent Nos. 3, 5, 6 and 7 along with the petitioner are the partners of respondent No. 2 firm called Mundadan Industries at Angamali. By the impugned order, the prayer of the petitioner to set aside the sale of the immovable properties which are items 1 and 2 of the decree schedule held on 12-3-1986 in execution of the decree for realisation of the loan amount was rejected. Her prayer to permit her to redeem the said items of mortgaged property by deposit of the entire decree debt with interest, costs etc. up-to-date was also rejected.
2. The questions that arise for consideration in this revision are: (1) whether the sale of the two items of immovable properties held on 12-3-1986 in execution of the decree is liable to be set aside on the ground that the sale was void; and (2) whether the petitioner is entitled to redeem the mortgage by deposit of the entire decretal debt together with up-to-date interest and costs.
3. As the partners of respondent No. 2 firm-Mundadan Industries, the petitioner and others took a loan of Rs. 5,60,000/- from the first respondent-Corporation. The property, the sale of which is now sought to be declared as void, was furnished as collateral security and a mortgage deed was registered on 5-4-1972. Since the loan amount was not paid, the Corporation instituted the O.P. on 6-7-1981 for recovery of an amount of Rs. 12,91,505.85 with future interest at 13.5%. The present petitioner was respondent No. 1 therein. On 5-10-1983, the prayer in SFC (OP) 206/81 was allowed with a direction for sale of the property to realise the outstanding dues from the petitioner and other partners of the firm. No appeal was filed against the order in that O.P. Hence that order has become final. On 29-8-1984, execution was levied by filing E.P. 135/84 for realisation of Rupees 19,29,965/-. Notice under Rule 66 of Order 21 of the Code of Civil Procedure, for short, the C.P.C. was issued. The present petitioner appeared on 15-12-1984 and filed a counter-affidavit on 2-2-1985. The objection filed by the judgment-debtors were considered and ruled out by the order dated 5-8-1985. The property was sold on 12-3-1986. The decree-holder mortgagee-Corporation purchased the property for Rs. 17 lakhs. On 24-5-1986, judgment-debtors 1, 2 and 3 filed a petition under Rule 90 of Order 21, C.P.C. for setting aside the sale. It was registered as E.A. 42/ 86. The present petitioner was not made a party therein. On 27-3-1987, the petition was dismissed. The judgment-debtors filed C.M.A. No. 132/87 before the High Court against the order dated 27-3-1987. By the judgment dated 10-3-1988, this Court remanded the matter for fresh hearing. E.A. 42/86 was again dismissed on 4-9-1989. C. M. A. No. 13 /90 was filed before this Court against the order dated 4-9-1989. In that C.M.A. the appellants-judgment-debtors un-conditionally agreed to pay the decretal debt on or before 2-7-1991 in accordance with the joint statement filed by both the parties on 2-1-1991. On 3.1-8-1990, the Corporation had filed a petition (E.A. 23/90) for delivery of possession of the property sold in execution of the decree. Notice was issued to the present petitioner as well as other judgment-debtors. The present petitioner and other did not file any objection although entered appearance. Hence the Court passed an order on 30-11-1990 for delivery of possession of the property to the Corporation. However, the proceeding remained stayed till 22-9-1991 in view of the order in C.M.A. No. 13/90. On 6-9-1991, the Court passed the order for delivery of possession on 30-9-1991. There was resistance by the sons of the present petitioner. On 15-11-1993 directions were given by the Court to remove the obstructions. On 8-12-1993, the Amin effected the delivery of possession of items 1 and 2 except the residential building in item No. 2 of the decree schedule property. On 7-12-1993, E.F.A. No. 30/93 was filed before the High Court by the second respondent, who was the obstructor in E.A. 36/91. The prayer for stay of delivery of possession was refused. Again E.A. No. 50/93 was filed by the present petitioner to declare that the delivery of possession effected by the Amin was illegal. The present petitioner obstructed to the delivery of possession of the residential building. The Corporation filed E.A. 54/93 for police protection. The Court below dismissed E.A. 50/93 and allowed E.A. 54/93 by a common order dated 7-1-1994. C.R.P. No. 137/94 filed before the High Court against the order in E.A. 50/93 was also dismissed. On 12-1-1994, the decree-holder-Corporation took delivery of the residential building. After the purchase of the properties by the decree-holder-Corporation on 12-3-1986, the decree-holder still claimed balance amount under the decree as shown in the caveat dated 28-8-1995 filed by the decree-holder and produced by the petitioner along with E.A. 42/95. The petitioner filed E.A. 39/95 in the execution Court to declare the sale as void and for restoration of possession and redemption of mortgaged property. By the impugned order dated 19-12-1995, the E.A. was dismissed and the present revision has been preferred against it.
4. The main contentions of the learned counsel for the petitioner are:
(i) The sale in question, having been done beyond the period of 30 days from the date fixed for sale in the sale proclamation, the same is void.
(ii) The reserve price mentioned in the sale proclamation is less than the decretal amount that was then due to the decree-holder. It is therefore illegal and the sale is vitiated on that ground.
(iii) The mandatory provision for attachment of the property prior to the sale as envisaged in Sections 31 and 32 of the State Financial Corporation Act, 1951, for short, the Act has not been complied and as such the sale is illegal.
(iv) The conduct of sale being vitiated by illegalities and material irregularities, dispossession of the petitioner is also illegal and she is eptitled to be in possession of the property in question. The equity of redemption has not been extinguished by the void sale.
5. The learned District Judge negatived all the aforesaid contentions.
6. Learned counsel for the Corporation has contended that the petition under Section 47 of the C.P.C. to set aside the sale is not maintainable. Since no petition under Order 21, Rule 90, C.P.C. was filed the same is barred by time. In spite of several opportunities being given to the petitioner and other judgment-debtors, they failed to repay the decretal debt in order to redeem the mortgaged property. The sale was conducted strictly in accordance with law and there is no illegality or material irregularity in the conduct of the sale.
7. The petitioner was dispossessed from the property on 8-12-1993 and 12-1-1994. It is contenced by the learned counsel for the Corporation that after, the sale was confirmed, it is not open to the judgment-debtor to agitate the matter under Section 47 of the C.P.C. Similar such question came up before the Supreme Court in Harnandrai Badridas v. D. B. Prasad, (1973) 2 SCC 467 : (AIR 1973 SC 2423). The questions raised there were whether a decree-holder, after auction sale in execution of a decree, can move the executing Court for delivery of possession of an immovable property and whether the judgment-debtor’s petition challenging the sale and delivery of possession can be treated as one under Section 47 of the C. P.C. The Supreme Court held as follows (Paras 5, 6 and 8) :–
“If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the Legislature would frame such rules as Rules 95 to 102 under Order 21 of the Code of Civil Procedure. The Legislature must have thought that the duty of the executing Court should not and with the confirmation of the sale. Section 47 should be construed liberally. If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who was has been a party to the decree will shed his character as such parity merely upon purchasing the property at the execution sale. After all, a decree-holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard, to this consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession the question must be one which relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.
It is important to remember that after decision of the Privy Council in Ganapathy v. Krishnamachariar, 45 Ind App 54 : AIR 1917 PC 121, there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must be determined by the executing Court and not by a separate suit.”
Since the petitioner was entitled to file a petition under Section 47 of the C.P.C. relating to the execution, discharge and satisfaction of the decree, the petition is maintainable and the period of limitation available for filing an application for restoration of possession is three years in terms of Article 137 of the Limitation Act, 1963.
8. The Supreme Court in Ramanna v. Mallaparaju, AIR 1956 SC 87 laid down that an application by a party to the suit to recover possession of the properties which had been taken delivery of under a void execution sale would be in time under Article 181 of the Limitation Act, 1908, if it was filed within three years of his dispossession. The corresponding article of Act 1963 is Article 137. Article 128 of the Limitation Act, 1963 of which the corresponding article is 165 of the Limitation Act, 1908, lays down that the period of limitation is 30 days from the date of the dispossession for filing a petition for possession by one dispossessed of immovable property and disputing the right of the decree-holder or purchaser at a sale in execution of the decree. It has been made clear in Ramanna’s case (AIR 1956 SC 87) that this article applies only to applications for being restored to possession by persons other than judgment-debtors, as under Order 21, Rule 100, C.P.C. and applications by judgment-debtors claiming relief on the ground that their properties had been erroneously taken is execution of the decree are not governed by it. Since the application under Section 47 has been filed within three years from the date of dispossession and the same being not one under Order 21, Rule 90, C.P.C. the contention that it is barred by limitation is not correct.
9. The Sale was admittedly held one month after the date fixed for sale in the sale proclamation. Relying on the decision reported in Jamini Mohan Mundy v. Chandra Kumar Roy, (1902) 6 Cal WN 44 k is urged that the postponement of sale beyond 30 days even where there is a series of short adjournment is a material irregularity in the conduct of sale.
10. It is laid down with reference to the provisions of the C.P.C. as it stood then, that where there is a series of short postponements less than seven days which taken together in the aggregate amount to more than seven days, as sale held after such adjournment was vitiated by a material irregularity and as such a fresh proclamation of sale is necessary. In Subanna v. Satyanarayan, AIR 1943 Mad 739 a Division Bench of Madras High Court, after noticing the aforesaid Calcutta decision, held that the sale deed after adjournment amounting in the aggregate to more than 30 days was not a nullity but was only an irregularity and could be set aside only if substantial loss was proved. This Court in Alikunju Pathummal Kunju v. Aiyappan Sanku Panicker, 1956 Ker LT 954 held that the omission to issue a proclamation as required by Rule 69(2) of Order XXI, C.P.C amounts to a mere irregularity and a sale will not be set aside in the absence of proof of substantial injury.
11. In this case, the last proclamation for sale was published on 17-12-1985. The sale which was to be held on 9-1-1986 was adjourned to 6-2-1986, 13-2-1986 and finally to 12-3-1986. There was no prayer for adjournment 6-2-1986. Sub-rule (2) of Rule 69 of Order 21 of the C.P.C. lays down that where a sale is adjourned under Sub-rule (1) for a longer period than 30 days a fresh proclamation under Rule 67 shall be made, unless the judgment-debtor consents to waive it. It is contended by the learned counsel for the Corporation that the sale was being adjourned from time to time on the application of the judgment-debtor and the Court passed orders that the sale shall be conducted on the same proclamation. Since issue of fresh proclamation under Rule 67 of Order 21, C.P.C. was waived by the judgment-debtors, the sale of the property beyond 30 days on the same proclamation without issue of a fresh proclamation cannot be construed as an illegality. It is to be considered whether waiver can be inferred merely because the sale was adjourned beyond 30 days on the request of the judgment-debtors and whether the petitioner and other judgment-debtors suffered substantial injury due to conducting of the sale on the same proclamation without due publication afresh.
12. On a reading of the aforesaid provisions it is clear that except when there is waiver by the judgment-debtor fresh proclamation of sale is necessary and there should be due publication of it whenever the sale is adjourned for a period of more than thirty days. It does not provide that if adjournment is made at the instance of the judgment-debtor, fresh proclamataion under Rule 67 is not necessary. Moreover, it appears that the Court suo motu adjourned the sale to 13-2-1986 from 6-2-1986. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntarly choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and enforcement of the right in question (P.D.M. Reddy v. P.A. Rao. AIR 1974 SC 2089). The Gujarat High Court in Raman Lal v. Indumati, AIR 1990 Gujarat 1 has rightly pointed out that in such cases to avoid any future controversy the executing Court can insist upon the judgment-debtor to submit a petition supported by an affidavit that he waives the requirement of fresh proclamation under Order 21, Rule 67, C.P.C. There is nothing on record to show that the petitioner herein or any of the judgment-debtors consented to waive the requirement of fresh proclamation.
13. When an act is done in contravention of a rule of law, it causes substantial legal injury to the person affected by it.
Rule 66 of Order 21, C.P.C. reads as follows:
“66. Proclamation of sales by public-auction :–
(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible —
(a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:
Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by Sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.”
There can Be no doubt that if there is any variation in any of the particulars mentioned in the sale proclamation after the sale had been adjourned then there may have to be a fresh settlement of proclamation, because Sub-rule (2) of Rule 66 requires the particulars to be settled after notice and if the particulars have to be altered they cannot be altered without notice to the judgment-debtor. Therefore, due publication of a fresh proclamation with alterations is necessary. In this case the last sale proclamation was published on 17-12-1985 for sale of items 1, 2 and 4 of the decree schedule. Item No. 4 was sold on 13-2-1986 for an amount of Rs. 1,01,000/-and the same was realised. This amount was not deducted from the outstanding decretal dues in the sale proclamation as required under Rule 66(2)(d) of Order 21, C.P.C Interest that accrued from 17-12-1985 to 12-3-1986 ought to have been added to the amount for which the sale is ordered. The next date of sale should have been altered in the sale proclamation. All these alterations were not done in the proclamation of 17-12-1985 when the properties were sold on 12-3-1986. Admittedly, no fresh notice was given and there was no fresh publication of a sale proclamation containing the altered particulars. In A. Venkatachalam v. E.M. Zackria (1987 (Supp) SCC 124, the Supreme Court held, after approving the observations in Srikakula Chinna Venkatanarayana v. Pannapati Elias, AIR 1954 Madras 1024, and referring to the decision in S.A. Sundararajan v. A.P.V. Rajendran, [(1981) 2 SCR 600 : (1981) 1 SCC 719 : AIR 1981 SC 693], that the observations therein only mean that proceedings prior to the stage of Order 21, Rule 64 do not relate to ‘publishing and conducting the sale’ and not that proceedings subsequent to the stage of Order 21, Rule 64 will only attract Order 21, Rule 90 and not Section 47, C.P.C. Where there is no publication or conduct of the sale containing the necessary particulars as required under Rule 66(2) of Order 21, C.P.C. the sale is illegal and void. On the facts of this case, it appears that in effect there had been no publication of sale proclamation for sale of Items 1 and 2 according to law after 13-2-1986 when Item No. 4 was sold.
14. Items 1 and 2 of the decree schedule consist of two acres and 83 cents of land with big buildings thereon within the Municipal limits of Angamaly town and He by the side of the National Highway. The judgment-debtors objected to the valuation of Rs. 10,00,000/-and Rs. 7,00,000/- respectively on 2-2-1985 and submitted that the value of the property would be not less than Rs. 50,00,000/- at the rate of Rs. 15,000/- per cent and sale proceeds of a part of the same would be sufficient to satisfy the claim of Rs. 22 lakhs and odd. But this objection was ruled out without making any enquiry whatsoever before it was sold on 12-3-1986. In Ambati Narasayya v. M. Subba Rao, AIR 1990 SC 119, the Supreme Court held that it is of importance to note from Order 21, Rule 64, C.P.C. that in all execution proceedings the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction. In this case, this aspect having not been examined in spite of objection by the judgment-debtors, the sale is illegal and without jurisdiction.
15. Rule 72A of Order 21 of C.P.C. lays down that a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property. It further contemplates that if leave to bid is granted to such mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs, the reserve price shall not be less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot, and in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.
16. There is no dispute that the mortgagee-decree-holder in this case obtained the leave of the Court to purchase the property. Learned counsel for the petitioner contends that by 23-8-1985 when the first proclamation was approved by the Court, the amount due was Rs. 22,23,863/-. But, when the execution petition was filed on 29-8-1984, the decree-holder/mortgagee showed that the amount due was Rs. 19,29,965/- as on 20-6-1984. Since, it is contended, that the decree-holder was permitted to purchase the property at a lesser price than what was due to the decree-holder, the sale was held in violation of the provisions of Rule 72A of Order 21, C.P.C.
17. It appears that the execution Court without giving any reason whatsoever fixed the reserve price which is less than the amount then due. This Court in Abdulla v. Syndicate Bank, (1996) 1 Ker LT 9, and Sreedharan v. Federal Bank, (1996) 1 Ker LJ 20, laid down that the reserve price so fixed should not be less than the amount then due under the decree. In other words, the reserve price for which the property can be purchased by the mortgagee should take in the principal amount, interest thereon and costs. In fixing the reserve price, the Court has to take into consideration the entire facts and circumstances of the case and the value of the property. When the mortgagee-decree-holder purchases the property, on getting the reserve price fixed, the sale consideration will go in discharge of the decree debt as provided in Clauses 2 and 3 of Rule 72. Thus it is mandatory for getting the reserve price fixed which should not be less than the amount due for the mortgagee-decree-holder to purchase the property in court auction. In this case, the execution Court has failed to consider the entire facts and circumstances of the case and the value of the property. The impugned sale, therefore, is a nullity.
18. Learned counsel for the petitioner contends that the sale of the property under Sections 31 and 32 of the Act without attachment prior to it is void.
Under Clause (a) of Section 31 of the Act, the Financial Corporation may apply to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance.
Sub-section (1) of Section 32 of the Act contemplates that when the application is for the reliefs mentioned in Clauses (a) and (c) of Sub-section (1) of Section 31, the District Judge shall pass an ad interim order attaching the security, or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value of the outstanding liability of the industrial concern to the Financial Corporation. In Sub-section (4) of Section 32, it is laid down that at the same time as the District Judge passes an order under Sub-section (1) he shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order, the application and the evidence, if any, recorded by him calling upon it or him to show cause on a date to be specified in the notice why the ad interim order of attachment should not be made absolute or the injunction confirmed. Sub-section (6) thereof lays down that the District Judge shall proceed to investigate the claim of the Financial Corporation in accordance with the provisions contained in the C.P.C. in so far as such provisions may be applied thereto. Sub-section (7) of Section 32 of the Act lays down that after making an investigation under Sub-section (6), the District Judge may confirm the order of attachment and direct the sale of the attached property. It is argued that a reading of Sub-section (1) and Sub-section (7) of Section 32 of the Act would show that attachment of the property is required to be made mandatorily prior to its sale.
19. In Maganlal v. Jaiswal Industries, AIR 1989 SC 2113, the Supreme Court held (para 22):
“It is true that under the Code it is not necessary to attach the mortgaged property before putting it to sale but Section 31 of the Act contemplates attachment of even the mortgaged property and Section 32 thereof speaks of an order of sale of the attached property, but that alone can by no stretch of imagination have the effect of extinguishing the equity of redemption. Such attachment does not have that ‘effect cither under the proviso to Section 60 of the Transfer of Property Act or under any provision of the Act, or Rule or Order made thereunder. Sections 31 and 32 of the Act in so far as they contain the requirement of attaching the mortgaged property before its sale and ordering sale of the attached property read with Sub-section (8) of Section 32 of the Act will, therefore, have the only effect that the said requirement “shall be in addition to, and not in derogation of” the provisions contained in the Code for sale of mortgaged property.”
A Division Bench of this Court in Thressiamma v. Kerala State Financial Corporation, AIR 1986 Ker 222, laid down that Sub-section (5) of Section 32 of the Act is significant inasmuch as it contemplates confirmation of the order of attachment and thereupon for sale of the attached property. Under Sub-section (1), the property secured is to be attached. This would indicate that what is to be sold is property attached.
20. In the attachment schedule appended to the petition in I.A. No. 688/81 dated 9-7-1981 for attachment, there is no mention of Items 1 and 2 (the immovable properties in question). Moreover, I.A. No. 688/81 in which the prayer for attachment of the properties was made was ultimately dismissed on 5-10-1983. There was, therefore, no attachment of the immovable properties.
There was no compliance with the fundamental provisions of the statute. Non-compliance with the statute would make the entire
proceedings before the appropriate authority
illegal and without jurisdiction. (See Srikant Kashinath Jituri v. Corporation of the City of
Belgaum, (J994) 6 JT (SC) 496 : (AIR 1995
SC 288).
21. For the reasons stated above, I find that the sale of the mortgaged property held on 12-3-1986 is illegal and without jurisdiction.
22. The next question is as to whether the petitioner is entitled to redeem the mortgaged property on payment of the principal amount together with uptodate interest. Similar question was considered by the Supreme Court in Maganlal v. Jaiswal Industries, AIR 1989 SC 2113. The question before the Supreme Court was whether after confirmation of sale of property mortgaged to Financial Corporation in execution of an order under Section 31(2) of the Act, the debtor can redeem the mortgage. After referring to various decisions of the Supreme Court and other High Courts, it is laid down as follows:–
“There is no provision in the Act or any Rule or Order made thereunder stating that the effect of any action taken thereunder including the passing of orders of attachment and sale under Sections 31 and 32 thereof is to extinguish the right of redemption. In other words, there is nothing in the Act or in any Rule or Order made thereunder which may be inconsistent with Section 60 of the Transfer of Property Act particularly the proviso thereto. Consequently no provision in the Act can be read “in derogation” of the said Section 60. In this connection, it could not be said that Section 32(8) of the Act made the manner provided in the Code applicable only “as far as practicable” and there was neither a decree nor was the Financial Corporation a decree-holder in a suit for sale but was only deemed to be a decree-holder by legal fiction because of the expression “in execution of a decree as if the Financial Corporation were the decree-holder”. As is apparent from the plain language of Section 32(8) of the Act the legal fiction was created for the purpose of executing an order under Section 32 for sale of attached property as if such order was a decree in a suit for sale and the Financial Corporation was the decree-holder whereas the debtor was the judgment-debtor. Consequently, the provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order 21 of the Code including the right to file an appeal against such orders passed during the course of execution which are appealable shall apply mutatis mutandis to execution of an order under Section 32 unless some provision is not practicable to be applied. It cannot be disputed that the provisions contained in Order 34, Rule 5 of the Code are attracted as is apparent from the plain language thereof during the proceedings in execution of a final decree for sale and are thus provisions contained in the Code with regard to and having a material bearing on the execution of a decree as aforesaid. The provisions contained in Order 34, Rule 5 of the Code in substance permit the judgment-debtor to redeem the mortgage even at the stage contemplated by Order 34, Rule 5 unless the equity of redemption has got extinguished. Since the contingency whereunder an equity of redemption gets extinguished is contained in the proviso to Section 60 of the Transfer of Property Act and since in the instant case the equity of redemption had not extinguished there is no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under Section 32, the provision contained in Order 34, Rule 5 of the Code shall not apply.”
23. Since the sale of the property is found to be void and since there is no foreclosure of the mortgage, the petitioner has the right of redemption on deposit of the amount to which the Corporation is entitled up-to-date, in terms of Section 60 of the Transfer of Property Act, 1882. The equity of redemption in this case has not extinguished.
24. In the result, the revision is allowed. The order dated 19-12-1995 of the Court below is set aside. The impugned sale is declared void. The execution Court shall forthwith restore the possession of the properties to the petitioner and other judgment-debtors. The petitioner is directed to deposit Rs. 38 lakhs (Rupees Thirtyeight lakhs only) in the execution Court within a month hence. On deposit of the aforesaid amount, the mortgaged property shall stand redeemed forthwith. Parties to bear their own costs.