Shiv Dayal Srivastava, T.S. Krishna Moorthy lyer, D.N. Mishra, R.P. Srivastava, S. Sukumaran and H.K. Puri, Harish Salve, K.K. Mohan, A.K. Sanghi, S.K. Agnihotri, Ashok Singh, H.K. Puri and K. Gambir for appearing parties.
The Judgment of the Court was delivered by OJHA, J. These two appeals by special leave raise an interesting question as to whether the provisions companytained in Order 34 Rule 5 of the Code of Civil Procedure hereinaf ter referred to as the Code are attracted during the companyrse of execution of an order of sale of mortgaged property passed under section 32 of the State Financial Corporation Act, 1951 hereinafter referred to as the Act .
The High Court, however, did number stay further proceedings for re sale but only ordered that the fresh sale should number be companyfirmed till the disposal of the appeal.
The suit was companytested inter alia on the ground that as the mortgagors did number pay the decretal dues under the decree passed in the previous suit their right of redemption had been extinguished.
Necessary facts in order to appreciate the companytext in which this question arises may be stated in brief.
2991 of 1980, as already indicated above.
This application was ordered to be put up at the time of the hearing of the appeal.
Maganlal who is the appellant in Civil Appeal No.
The prayer which was made in this applica tion was that the aforesaid sums may be paid to the first and second purchasers respectively and a final decree be passed in his favour in accordance with Order 34 Rule 5 of the Code.
9940 of 1982 to which an objection has been filed.
A sum of Rs.65,000 was paid by Maganlal to the Corpora tion on December 3, 1988 in full and final settlement of its claim and the Corporation acknowledged it by granting a receipt.
It is this order which has been challenged in Civil Appeal No.
Subse quent events and proceedings of the companyrt below on the basis whereof this application has been made as stated therein are these.
The appeal of the first purchaser was subsequently allowed by the High Court.
2990 of 1980 executed a mort gage on July 16, 1965 in favour of M.P. State Financial Corporation hereinafter referred to as the Corporation as security for a loan taken by him from the Corporation.
From the Judgment and Order dated 20.9.
2990 of 1980 by Maganlal and by the second purchaser in Civil Appeal No.
The amount of loan number having been paid by Maganlal the Corpora tion initiated proceedings under section 31 of the Act for recovery of Rs.51,799, which according to it was the amount due, by attachment and sale of the mortgaged property.
The application made by Maganlal under Order 21 Rule 90 of the Code was dismissed and the sale in favour of the first purchaser was companyfirmed.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
This appli cation was allowed by the Additional District Judge and the sale was set aside.
This application was made as companytemplated by Section 31 of the Act before the District Judge.
2990 91 of 1980.
After adopting the procedure companytemplated by section 31 of the Act the District Judge passed an order for sale of the property which was ultimate ly sold for Rs.53,000 in an auction.
Certification of the adjustment thus made was recorded by the District Judge on April 6, 1981.
The Additional District Judge by his order dated November 27, 1981 permitted Maganlal to deposit the two amounts separately at his risk and we are informed by his learned companynsel that these amounts were deposited in pursu ance of the said permission.
1979 11.9.79 of the Madhya Pradesh High Court in Misc.
M s Jaiswal Industries hereinafter referred to as the first purchaser was the highest bidder.
113 of 1976.
Appeal No.
The Subordinate Judge overruled the objection on the ground that in view of the pendency of the appeals filed by the judgment debtors against the order dismissing their applica tions under Order 21 Rule 90 of the Code time did number begin to run until March 17, 1927 when the said appeals were dismissed by the High Court.
Magahlal made an application under Order 21 Rule 90 of the Code for setting aside the sale.
The defend ants preferred an appeal against that decree before the High Court and raised a similar companytention as was their defence in the trial companyrt.
1,46,000 which was the highest bid of the second purchaser.
Maganlal has made an application before this Court under order 34 Rule 5 of the Code being C.M.P. No.
It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and final decree were passed and the mortgagors did number redeem the mortgages by depositing the decretal dues, still the right of redemption was number extinguished.
An applica tion purporting to be under Order 34 Rule 5 of the Code was made on November 20, 1981 by Maganlal for depositing Rs.2,650 equivalent of 5 of Rs.53,000 which was the highest bid of the first purchaser and a further sum of Rs.7,300, that is, 5 of Rs.
2991 of 1980.
The findings of the High Court aforesaid with regard to the maintainability of the second suit for redemption were challenged by the defendants before this Court and it was reiterated by their learned companynsel that second suit was number maintainable.
Fresh auction accordingly took place and the sale was knocked down in favour of Ramnarayan and others hereinafter referred to as the second purchaser who are the appellants in Civil Appeal No.
This application was opposed inter alia on the ground that such an application companyld number lie after the sale had been companyfirmed by the lower companyrt.
Aggrieved by that order the first pur chaser preferred a miscellaneous appeal in the High Court and also made an application for staying further proceedings for re sale.
The aforesaid plea raised in defence was repelled by the trial companyrt and the suit for redemption was decreed.
