JUDGMENT
P.K. Balasubramanyan, J.
1. The decree holder is the petitioner. It is a bank. The decree was one for recovery of money in enforcement of a mortgage. In execution the hypotheca was brought to sale. It was sold on June 15, 1987, for a sum of Rs. 20,001. The sale amount was not sufficient to discharge the decree debt. Judgment-debtor No. 1 and a stranger who claimed that the property had subsequently been agreed to be sold to her filed an application under Order 21, Rule 89 of the Code of Civil Procedure, 1908. The sale amount and 5 per cent. thereof was deposited. The executing court set aside the sale on November 21, 1987. For the balance due under the decree, the decree holder filed E. P. No. 251 of 1991. The decree holder sought to attach the property of judgment-debtor No. 1 which had earlier been mortgaged and sold in enforcement of the mortgage decree. This was, on the basis that the property belonged to the judgment-debtor on the sale being set aside and since the property had not been sold to the person who had joined the judgment-debtor in applying under Order 21, Rule 89 of the Code of Civil Procedure, the decree holder could proceed against the property. That application was originally dismissed by the executing court. In C.R.P. No. 504 of 1991 filed by the decree holder, this court set aside the order of the executing court and remanded the application for attachment, to that court, for a fresh decision. The executing court held that since the property had been once sold in enforcement of the decree on the mortgage, the decree holder had no right to attach the properties over again for recovery of the balance amounts due under the decree. It is significant that the judgment-debtor alone objected to the attachment and not the person who had joined the judgment-debtor in the application under Order 21, Rule 89 of the Code of Civil Procedure on the basis that there was an agreement for sale in her favour. Obviously, there had been no conveyance by judgment-debtor No. 1 to the person who had joined her in making the application under Order 21, Rule 89 o.f the Code of Civil Procedure. An agreement for sale even if true, does not convey any title. The order of the executing court is challenged in this revision by the decree holder.
2. Order 34, Rule 6 of the Code of Civil Procedure provides that where the net proceeds of a sale held in terms of Order 34, Rule 5 of the Code is found insufficient to pay the amount due. to the mortgagee-plaintiff, the court, on an application by the plaintiff may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. The argument on behalf of the judgment-debtor is that in terms of Rule 6 of Order 34, the amount can be recovered personally only otherwise than out of the property sold. It is contended that once the sale has taken place under Order 34, Rule 5 of the Code, the decree for the further amounts personally against the judgment-debtor can be recovered only otherwise than from out of the property secured. It is further contended that the fact that such a sale was set aside under Order 21, Rule 89 of the Code of Civil Procedure, would not make any difference to the situation and the decree holder could proceed against the judgment-debtor for the recovery of the balance without being able to proceed against the property mortgaged and sold. A decision of the Travancore-Cochin High Court in Gopalan v. Mariamma, AIR 1957 TC 107, is relied on in support. In that decision relying on a decision of the Patna High Court reported in Gokul Bihari Das v. Kalandi Senda, AIR 1940 Pat 191, it has been held (headnote of AIR 1957 TC 107) :
“When a mortgaged property is sold in execution of the mortgage decree and the sale is subsequently set aside under Order 21, Rule 89, the mortgage lien on the property would be extinguished and the property cannot be sold again under the same decree. When a deposit under Order 21, Rule 89 is made and an application under that rule is allowed what takes place in effect is a transfer of the rights of the auction purchaser to the applicant.”
3. The submission, therefore, is that the executing court was right in refusing to attach the self same properties once sold in execution of the decree.
4. Though there appears to be some controversy as to whether Order 21, Rule 89 of the Code of Civil Procedure would apply to a sale held in execution of a mortgage decree, the said question need not be considered in this case. Here, as a matter of fact, the sale was set aside on an application under Order 21, Rule 89 of the Code of Civil Procedure. This is probably justified because of the absence of a rule corresponding to Order 34, Rule 5 of the Code of Civil Procedure in the modified rules of Order 34 adopted in the State of Kerala. Whatever that be, the question that has to be considered is the effect of the setting aside of the sale under Order 21, Rule 89 of the Code of Civil Procedure. On setting aside of the sale, the property reverts to the judgment-debtor and continues to be the property of the judgment-debtor. If in execution for the balance amount a personal decree is possible as against the judgment-debtor, I see no reason why this property which had reverted to the judgment-debtor cannot be attached in execution in enforcement of the personal decree. That on a sale being set aside the property would revert to the judgment-debtor is clear from the principle recognised in the decision of the Madras High Court in Venkata Madhava Rao v. Narayanamurty, AIR 1931 Mad 511, wherein their Lordships held (headnote) :
“Even after auction sale of property but before the confirmation of the sale, judgment-debtor retains interest in the property which can be attached or sold.”
5. Our court in the decision in Lord Krishna Bank v. Thomas Joseph [1975] ILR 2 Ker 640 has taken the view that on a sale being set aside and a part satisfaction of the decree being entered, the property is still available for being proceeded against in execution against the judgment-debtor at the instance of the decree holder. His Lordship Justice George Vadakkel has held :
” Section 65 of the Code provides that where immovable property is sold in execution of a decree and such sale becomes absolute, the property would be deemed to have vested in the purchaser at the time when the property is sold. Rule 92 of Order 21 provides for confirmation of the sale whereupon the sale shall become absolute. These provisions may together mean that without confirmation of sale or in other words till the sale has become absolute, the property shall remain to be that of the judgment-debtor. In other words, the property that was sold shall remain that of the judgment-debtor till the sale becomes absolute. The sale has not become absolute in this case because in the meanwhile there was an application under Rules 89 and 90 of Order 21 ; pursuant to this application the sale was set aside and the amount deposited, no doubt, by the sixth defendant as a person interested which was allowed to be drawn by the decree holder and a part satisfaction of the decree was also entered. In these circumstances there can be no doubt that the judgment-debtor had still rights in his property. All rights which he had prior to the sale remained “in him subsequent to the sale till confirmation of the sale. In this view there cannot be any basis for holding that after the sale the judgment-debtor retained no further rights in the property.”
6. It appears to me that the question arising in the present case is directly covered by the ratio of the decision referred to above.
7. The decision of the Trayancore-Cochin High Court in Gopalan v. Mariamma, AIR 1957 Trav-Coch 107, is authority only for the proposition that once in enforcement of the mortgage ,decree the hypotheca is sold, the same property cannot be proceeded against in execution of the same decree on the basis that the mortgage or the charge subsists and the property cannot be sold again on the basis of the same charge. Even this view is departed from by Mr. Justice George Vadakkel in Lord Krishna Bank v. Timas Joseph [1975] ILR 2 Ker 640 wherein his Lordship has held that for the balance amount due under the decree the property can be sold again since the charge itself has not been extinguished wholly. But in the case on hand the decree holder bank has not sought the sale of the property on the ground that the charge under the decree continues.
8. What the decree holder bank has done is to seek to attach the property as if it belongs to the judgment-debtor on the sale being set aside under Order 21, Rule 89 of the Code of Civil Procedure. The decision in Gopalan v. Mariamma, AIR 1957 Trav-Coch 107, is not an authority for the proposition that the property cannot be attached again as if it belongs to the judgment-debtor. As observed by Vadakkel J. In Lord Krishna Bank’s case, [1975] ILR 2 Ker 640, on the sale being set aside, the property remains that of the judgment-debtor capable of being proceeded against in execution. Mr. Justice Varghese Kalliath in Parur Central Bank Ltd. v. A. C. Chacko [1990] 1 KLJ 294 ; [1992] 74 Comp Cas 275 has held after referring to the relevant provisions of Order 34 of the Code and also as adopted in Kerala that the executing court has the power even to attach the other properties of the judgment-debtor even before the sale of the hypotheca and even before determining whether the amount realised by the sale of the mortgaged property is sufficient to satisfy the decree debt. The principle noticed in the said decision indicates that the executing court can order attachment of the properties of a mortgagor judgment-debtor in execution of a decree for sale. If on principle it could be found that “on setting aside the sale, the rights of the judgment-debtor over the mortgaged property continue unaffected, I see no reason why the executing court cannot order attachment of the self-same property for realisation of the balance amount due under the decree. The title of the judgment-debtor is lost “only on the confirmation of the sale and if that be the position it is obvious that for recovery of amounts due from the judgment-debtor, that property belonging to the judgment-debtor would also be available for being proceeded against in execution of the personal decree against the mortgagor. I, therefore, hold that the executing court was in error in refusing to allow E. A. No. 231 of 1990, and in refusing to order attachment of the property.
9. Since the order of the court below is vitiated by failure to exercise
jurisdiction vested in it by law, the sale order is liable to be interfered
with in this revision under Section 115 of the Code of Civil Procedure.
I, therefore, allow this civil revision petition, set aside the order of the
executing court and allow E. A. No. 231 of 1990, as prayed for. The decree
holder will be entitled to take further steps on the basis of the attachment
effected in E. A. No. 231 of 1990, for realisation of the balance amount
due to it from the first judgment-debtor. In the circumstances of the case,
I make no order as to costs.