District Judge, Salem.
But in the facts of the present case, the revisional companyrt came to the companyclusion that the Appellate Court, by the same order first rejected the appeal C.M.A.No.78 of 1982 preferred against the order passed by the execution companyrt refusing to set aside the auction sale but thereafter allowed the application I.A.No.65 of 1988 under Order 34 Rule 5.
The dismissal of the appeal would only affirm the companyfirmation of the sale which was in nebulous state during pendency of the appeal.
No revision seems to have been preferred by the judgment debtor against the part of the appellate order dismissing their appeal C.M.A.No.78/1982.
District Judge, Salem who by order dated 23.8.1988 dismissed C.M.A.No.78 of 1982 but allowed I.A.No.65 of 1988.
Subramania Iyer for the proposition that a petition under Order 34 Rule 5 CPC can be entertained during the pendency of an appeal against the order rejecting the application under Order 21 Rule 89 and 90 CPC for setting aside the sale.
The suit was decreed and a preliminary decree was passed by the Ist Addl.
Later, it appears that the judgment debtor also moved an application I.A. No.65 of 1988 I.A.No.594/83 1st ADJ under Order 34 Rule 5 CPC.
M.A.No.
It also transpires that the judgment debtor was permitted by the Appellate Court to deposit the amount which he did on 6.4.1985.
The auction sale was companyfirmed on 3.111981 under Order 21 Rule 92 CPC and the application preferred by the judgment debtor under Order 21 Rule 90 was dismissed .
The application under Order 34, Rule 5 CPC moved by the appellant judgment debtor was entertained only during the pendency of appeal No.78/82.
The auction purchaser namely, Ramaswamy Gounder, preferred Civil Revision under Section 115 CPC against the order dated 23.8.1988 allowing I.A. No.65 of 1988.
Aggrieved by the order dismissing the application, moved by the judgment debtor under Order 21 Rule 90 CPC, he preferred an appeal some time in August, 1982 viz.
The respondent No.1 Ramaswamy Gounder is the auction purchaser of the property.
The mortgagee filed O.S. No.863 of 1973 for recovery of mortgage money.
The proposition which was relied upon, in view of the two decisions referred to above, is that even though the application for setting aside the sale was dismissed by the executing companyrt yet in appeal against such an order, the matter remains at large before the Appellate Court and companyfirmation of sale is number still final until disposal of the appeal.
The brief facts are that two mortgages were created by K. Palaniappa Chettiar died and whose LRs are on record as petitioners in favour of respondent No.2 M. Karuppuswamy.
78 of 1982 in the Court of the District Judge, Salem.
The decree holder moved application for execution of the decree in R.E.P.No.45 of 1980 in pursuance whereof, the property of the judgment debtor was auctioned on 9.10.1980.
However, the M.A. No.78 of 1982 as well as I.A.No.65 of 1988 ultimately came to be finally disposed of by the IInd Addl.
The learned Appellate Court placed reliance upon two decisions reported in 2 M.L.J. 1975 page 494 S.V. Ramalingam and another vs. K. Rajagopal and another and 1964 1 M.L.J. Page 275 Velliammal Vs.
78/82.
In such circumstances, the appellants cannot feel totally unconcerned with the final order passed in the main appeal namely C.A. No.
Had the said application number been pending, there was numberoccasion to permit the judgment debtor to make the deposit of the decretal amount etc.
Sub Judge, Salem and the final decree was also passed on 3.7.1974.
LITTTTTTTJ BRIJESH KUMAR, J. This appeal has been preferred by the judgment debtor, against the judgment and order dated 16.10.1992 passed by the Madras High Court in Civil Revision Petition No.513 of 1990 stemming out of execution proceedings, setting aside the order by which the application moved by the judgment debtor under Order 34 Rule 5 CPC was allowed in appeal by the Addl.
The Appellate Court, as indicated earlier, dismissed the appeal preferred against the order of the execution companyrt dismissing the application for setting aside of the sale moved under Order 21 Rule 90 CPC but allowed the application I.A.No.65 of 1988 moved under Order 34 Rule 5 CPC to set aside the sale on deposit of decretal amount.
under Order 34 Rule 5 C.P.C. since the sale had been companyfirmed prior to moving of the application.
