JUDGMENT
S. Nainar Sundaram, J.
1. In these letters patent appeals, the question which has arisen for consideration relates to the scope of, the contingency under which and the conditions on satisfaction of which, the power of Court is to be exercised under Order 34 Rule 5 of the Code of Civil Procedure, hereinafter referred to as the Code, To assess the question raised and to express an opinion thereon, it has become necessary to trace the facts of the case. We are obliged to refer to the parties as they stood arraye in C.M.P. No 16308 of 1982 in C.M.A. No 532/77 against the orders in which these letters patent appeals have been preferred, which array is more or less similar in the Civil Miscellaneous Appeal itself. In 1963, two items of properties were the subject-matter of mortgage by Narayana Raja, the petitioner, to and in favour of one Meyyappa Chettiar, who is no more. Ranganayaki Achi, the first respondent, who died subsequently, and Sevugan Chettiar, the second respondent, were countenanced as the legal representatives of Meiyappa Chettiar. On the death of Ranganayaki Achi herself; Sevugan Chettiar, the second respondent and Ramiah Chettiar, the seventh respondent, have been countenanced as her legal representatives. The suit, O.S. No. 166 of 1965 on the file of the Subordinate Judge, Madurai, was filed in enforcement of the mortgage by the original mortgagee and a preliminary decree was passed in the suit on 29th June, 1966. A final decree ensued on 28th February, 1967. Execution was prosecuted by the original mortgagee-decree-holder in E.P. No. 119 of 1967 for sale of the properties. The decree-holder seemed to have died subsequently and the execution was prosecuted by his legal representatives, The execution petition was posted for disposal on 22nd December, 1967. However, it was advanced on 1st December, 1967; and posted to 2nd December, 1967 when the executing Court directed the sale of the properties to be held on 22nd January, 1968. The sale was actually held on 23rd January, 1968 and item No. 1 was sold in favour of Natarajan Chettiar, the fifth respondent and item No. 2 of the properties was sold in favour of Ramaswami Chettiar, the sixth respondent. The petitioner, the defendant/judgment-debtor, filed E.A. No. 157 of 1969 under Order 21, Rule 90 of the Code for setting aside the Court auction sale. Despite the filing of the application to set aside the sale, the executing Court confirmed the sale and possession was taken. Ultimately E.A. No. 157 of 1969 was dismissed on 16th August, 1976. As against the decision in E.A. No. 157 of 1969, the petitioner preferred C.M.A. No. 532of 1977. Earlier, the civil miscellaneous appeal was allowed by this Court on 5th March, 1981, and the sale in favour of respondents 5 and 6 was set aside. S.N.S. & Co., Dindigul, the third respondent who is stated to be a puisne mortgagee, and the legal representatives of the first respondent, who seemed to have died subsequently, filed petitions to set aside the order of this Court in C.M.A. No. 532 of 1977. This Court allowed these petitions and as a result C.M.A. No. 532 of 1977 has been restored to be heard in respect to the third respondent and the legal representative of the fifth respondent. At this stage, the petitioner has filed the petition, C.M.P. No. 16308 of 1982 under Order 34 Rule 5 of the Code, seeking permission to deposit the amounts due under the decree. The petition was opposed by the third respondent and the legal representatives of the fifth respondent on two grounds. One is, the sale was confirmed long prior to the filing of the application and hence, Order 34, Rule 5 of the Code cannot be invoked, and the second, is, there has been no deposit into Court of the amounts due under the decree within the meaning of Order 34, Rule 5 of the Code and the petitioner only sought a direction to deposit and this would not suffice for the purpose of Order 34, Rule 5, Ramanujam, J., who heard the petition, repelled both the above contentions, allowed the petition and permitted the petitioner to deposit the amounts before the trial Court and the trial Court was directed to go into the question of the sufficiency or otherwise of the amounts deposited for the purpose of redemption. As stated above, these letters patent appeals are directed against the orders of the learned Judge in C.M.P. No. 16308 of 1982, and the appellants are the various respondents in C.M.P. No. 16308 of 1982.
2. Before us, Mr. R. Krishnamurthy, learned Advocate-General, advancing arguments in common for all the appellants, urged the very same contentions that were put forth before the learned single Judge. Order 34, Rule 5 enables the judgment debtor to make payment into Court of all the amounts due from him under the preliminary decree in a suit for sale on or before the day fixed, obviously under Rule 4 of Order 34 or at any time before the confirmation of the sale after a final decree is passed under Sub-rule (3) of Rule 5 of Order 34. In the present case, the final decree had been passed on 28th February, 1967 as narrated when recapitulating the facts of the case. Hence, the question is whether the petitioner could be enabled to make the deposit on the ground that such deposit is ‘before the confirmation of the sale’. We feel obliged to extract Order 34, Rule 5 as follows, with the amendment in this State so far as Sub-rule (3) is concerned, so that the relevant provision may stand adumbrated in this judgment itself:
Final decree in suit for sale…
(1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under Sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order;
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,
and if, necessary,
(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also if necessary,-
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under Sub-rule (3) of this rule, the Court shall not pass an order under Sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in Sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase-money paid into Court by the purchaser,
Where such deposit has been made, the purchaser shall be entitled to an order for re-payment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.
(3) Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf and after notice to all the parties, pass a final decree directing that the mortgaged property or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt in the manner provided in Sub-rule (1) of Rule 4.
Order 21, Rule 92 speaks about as to when the sale will become absolute and it reads as follows:
Sale when to become absolute or be set aside:(1) Where no application is made under Rule 89, Rule 90 or Rule 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.
Section 65 is also relevant when it speaks about purchaser’s title and it reads as follows:
Purchaser’s title:Where immovable property is sold in execution of a decree and such 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.
There ought to be an order confirming the sale. Such an order confirming the sale could be passed only where an application under Rule 89, Rule 90 or Rule 91 is made and disallowed. Only on confirmation, the sale shall become absolute. Once the sale becomes absolute, of course, the property shall be deemed to have vested in the purchaser from the time when the property was sold and not from the time when the sale become absolute. Where an application to set aside the sale has been filed and it gets dismissed by the first Court and an appeal has been preferred
against the order of dismissal, on the application of the first principle that the appeal is a continuation of the original lis and no finality could be attached to the order of the first Court, it has to be held that the disallowance of the application to set aside the sale has not reached the finality, so as to give the same finality to the confirmation which, if, in fact, has ensued on orders being passed by the first Court disallowing the application to set aside the sale. It is a well settled principle that once the order of the first court is appealed against, the lis continues and the controversy, the subject-matter of the lis, becomes once again sub-judice and the appellate Court, as the appropriate forum, has seisin of the entire lis. The mould of the order passed by the first court gets ripped open by the filing of the appeal to get a fresh mould as per the decision in the appeal. Appeal is nothing but the continuation of the original lis and the order of the first court is left suspended on the filing of the appeal and no finality and conclusiveness could be annexed to such an order with regard to matters decided thereby. The lis is being re-heard and the parties are enabled to plead and prove their case once again. If the above legal proposition is understood, then, there is no difficulty in ourselves holding that if the confirmation, which depended upon the disallowance of the application to set aside the sale, is left suspended, Order 34, Rule 5 can definitely be availed of by the judgment-debtor at the stage of the pendency of the appeal. The preceding judicial pronouncements of this Court support this view of ours without leaving scope for a second view.
3. In Venkata Narasimhan v. Nagojirao (1946) 59L.W. 130 : (1946) 1M.L.J. 216 : A.I.R. 1946 Mad. 344 a Bench of this Court, consisting of Horwill and Koman, JJ., dealt with a case where the very application under Order 34, Rule 5 was dismissed for default and thereafter the sale was confirmed. That application was restored and the Bench countenanced that the effect of setting aside the order of dismissal for default operated automatically to set aside the order of confirmation of the sale.
4. In Varadarajan v. Venkatapathi Reddy (1953)66 L.W. 13 : (1953)1 M.L.J. 148:I.L.R (1953) Mad. 880. A.I.R. 1953 Mad. 587 a Bench of this Court, consisting of Satyanarayana Rao and Krishnaswami Nayudu, JJ., held that on restoration of an application to set aside the sale, dismissed for default, the order of confirmation already made became ineffective and got automatically vacated and could be considered to be null and void. The Bench pointed out that the order of confirmation is a dependent order and the restoration, therefore, by the appellate Court of a petition under Order 21, Rule 90 would make the confirmation ineffective.
5. In Satyanarayana v. Ramamurthi (1960) 2 An.W.R. 430 Chandra Reddy, C.J., and Ananthanarayana Ayyar, J., pointed out that the confirmation of sale is dependent on the result of the application under any of the rules contemplated by Rule 92 of Order 21. The Bench further held that during the pendency of an appeal against an order dismissing an application for setting aside the sale, no finality attaches to the sale.
6. In Valli Ammai v. Subramonia Iyer Ramachandra Iyer, C.J., held as follows:
It is clear from the terms of Order 34, Rule 5 of the 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 solarium prescribed therein and avoid the sale. Notwithstanding the fact that the mortgagors’ petition for setting aside the sale had been dismissed by the Executing Court, the matter was at large before the appellate Court in appeal. There was therefore no final order of confirmation of sale before the appeal was disposed of. During the pendency of such appeal the mortgagors could deposit the amount due in the appellate Court and avoid the sale.
7. In Ramathal v. Nagarathinammal (1967) 1 M.L.J. 260 Ananthanarayanan, C.J., and Ramakrishnan, J., were concerned with a case where an application under Order 21, Rule 90 was dismissed for default and the sale has confirmed and possession was taken. However, on appeal, the application under Order 21, Rule 90 was restored and the Bench held, after referring to the earlier pronouncements of this Court, that the confirmation stood automatically vacated.
8. Learned Advocate-General wanted to rely on the decision of the Supreme Court in kukamchand v. Bansilal . In our view, neither the facts dealt with by the Supreme Court nor the principles recognised in that decision support the case of the appellants. There was an application under Order 21, Rule 90 and the sale could not be confirmed till that application was disposed of. On a particular date, by consent of parties, the judgment-debtors, on a particular time being given to deposit the decretal amount along with the auction purchaser’s commission, withdrew the application under Order 21, Rule 90 and the same was dismissed accordingly. The judgment-debtors sought extension of time and the question arose as to whether the Court had the power to grant time to deposit the money in the stated circumstances of the case. The Supreme Court opined that the Court had no power to extend the time and Order 34, Rule 5 cannot be availed of. The question of the present nature as to when the confirmation of sale becomes final never arose before the Supreme Court in that case.
9. S. Natarajan, J., in Ramalingam v. Rajagopalan after adverting to very many judicial precedents, held that on an appeal being preferred against the order dismissing the application to set aside the sale, the sale and its confirmation are left fluid and nebulous and the finality of the sale was rendered at large and as such, there could be a resort to Order 34, Rule 5 at the appellate stage. Rathnam, J, in A.N. Lakshminarayanan v. State Bank of India C.M.A. No. 186 of 1978 dated 1st June, 1982 has also taken a similar view.
10 The principles discussed by us above naturally lead us to the conclusion that until the confirmation of the sale becomes a finality in the eye of law, the provisions Order 34, Rule 5 can be availed of by the judgment-debtor and it is not possible to give a narrow and literal meaning to the expression ‘before the confirmation of a sale’ occurring in Order 34, Rule 5 as meaning only the order confirming the sale passed by the first Court since, on appeal being filed, that order is left at large.
11. There is another angle from which the matter could be viewed and which, in fact, Mr. M. Srinivasan, learned Counsel appearing for the petitioner, in C.M.P. Nol6308of 1982, who is the contesting respondent in all these appeals, would advance and press forth, and that is with reference to the provisions of the Limitation Act. Article 134 of the Limitation Act, 1963, prescribes a period of one year for an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree, from the time when the sale becomes absolute. Article 180 of the Indian Limitation Act, 1908, though prescribed a period of three years, also stated that time would run from the date ‘when the sale becomes absolute”. As to when the sale would become absolute, has got to be gleaned only from Order 21, Rule 92 of the Code. As per the provision, as stated above, sale will become absolute only on the court making an order confirming it. There are judicial precedents commenting on the implications from this angle and they are also useful to decide the question that has arisen in the present appeals.
12. In Chandramani v. Sreemathi Anarjan Bibi1 the Privy Council observed as follows:
Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words “when the sale becomes absolute”. In Article 180 of the Indian Limitation Act, regard must be had not only to the provisions of Order 21, Rule 92(1), of the Schedule to the Civil Procedure Code, but also to the other material sections and orders made under Order 2l Rule 92(1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will
1. (1934) 61 I.A. 248 : 67 M.L.J. 79:40 L.W. 65 : 36 : Bom.L.R. 717 : A.I.R. 1934 P.C. 34,
not become absolute within the meaning of Article 180 of the Indian Limitation Act until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the above-mentioned application.
In Sri Ranga Nilayam Radhakrishna Rao v. Kandokori Chellayamma 1930 S.C.R. 806 the supreme Court quoted with approval the dictum of the Privy Council referred to above, and further held as follows:
Under Article 180 of the Indian Limitation Act, the period of Limitation runs ‘from the date when the sale becomes absolute’. If we give a narrow and literal meaning to these words, the period of limitation should be held to run from the date when the original court of execution confirmed the sale. But, as was pointed out by the Privy Council, the High Court as an appellate Court had the same powers as the trial Court and it is only when the appeal was dismissed by the High Court that the order of the trial Court confirming the same became absolute. Till the decision of the appellate Court, no finality was attached to the order confirming the sale.
13. In Raju v. Arukkant I.L.R. a Bench of this court, consisting of Rajamannar, C.J., and Panchapakesa Ayyar, J., held that the sale will not become absolute until a claim suit arising, after an adverse order, under Order 21, Rule 58 came to be disposed of. The reasoning of the Bench is expressed in the following passage.
… We are clearly of the view that the sale could not be said to have become absolute till the claim suit was finally disposed of on 15th August, 1944. Till then the title of the judgment-debtor remained to be finally settled, viz, whether the judgment debtor was entitled to the entire property unencumbered, or she was entitled only to the equity of redemption at the time of the attachment and the sale. Till the rights were finally adjudicated in the course of the execution proceedings, it cannot be predicated what exactly the purchaser is entitled to get by virtue of his purchase. It will be only then that she can file an application for delivery of possession. If it finally held that she was only entitled to the equity of redemption, she would be entitled only to symbolical possession under Order 21, Rule 96, Civil Procedure Code. If, on the other hand, the possessory mortgage was found to be sham and nominal and the judgment-debtor was held to be entitled to the entire property, then the decree-holder will be entitled to obtain delivery of possession of the property itself. Till this was determined, it cannot be said that the Court auction sale has become absolute.
14. The legal principles being what they are, as discussed by us above, we cannot but concern with the view of the learned single Judge that the petitioner could definitely invoke Order 34, Rule 5 of the Code to make the requisite deposit since the confirmation of the sale has not reached the finality.
15. The second contention urged by the learned Advocate-General on behalf of the appellants is that there ought to have been an actual deposit of amounts under Order 34, Rule 5 of the Code before the very application is filed under that provision. The provision is unambiguous. The deposit has got to be made at any point of time before the confirmation of the sale. Once the principle is understood and as the confirmation has not reached the finality, because the appeal is pending, in that sense, there is no confirmation of the sale in the eye of law, the provision will stand satisfied if the deposit is made before the confirmation. We are not for a moment watering down the imperative implications of the said provision that there could be a payment or adjustment out of court other than the deposit contemplated under that provision. Such a proposition has been discountenanced by a Bench of this Court, consisting of Bell and Govindrajachari, JJ., in Madhavan Nayana v. P. Parameswara I.L.R. (1948) Mad. 734 : (1948) 1 M.L.J. 1686 : L.W. 45 : A.I.R. 1948 Mad. 373. So long as there is on confirmation of the sale in the eye of law and the matter is sub-judice in appeal, time is available for the judgment-debtor to make the deposit and the process of deposit could be worked out until the confirmation of the sale reaches the finality. Deposit into Court is not a matter of course and the civil Rules of Practice lay down the processual aspect in this behalf. We cannot countenance the submission made on behalf of the appellants that the actual deposit must precede the very filing of the application is every case. There must be a deposit and that deposit should be made before the confirmation of the sale. Here, the confirmation is yet to reach the finality. For all these reasons, the letters patent appeals deserve dismissal and accordingly, they are dismissed with costs.