HUKAMCHAND versus BANSILAL & ORS.

Citation: [1967] 3 S.C.R. 695 · Decided: 19-04-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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HUKAMCHAND 
v. 
BANSILAL & ORS. 
April 19, 1967 
(K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.] 
Civil Procedure Code, 1908, 0. XXX/, rr. 90. 92, 0. XXXIV, r. 5-
Judgment.<febtor making application 
under 0. XVI r. 90 after decree 
passed-Application withdrawn and til1U! extended with consent of par-
'f/es-Whether court /ias power to grant further extension or must con-
flt<m IMile under o. XX/, r, 92. 
The respondents were members of a cooperative housing society and 
had created a mortgage on their property in favour of the society. A' 
an amount due under the mortgage was not paid, the matter was referred 
to the Registrar of Cooperative Societies and he made an order on May 
!, 1957 directing the respondent to pay the amount due from August !. 
1953 till the debt was discharged. He further directed that if the amount 
was not paid, the property could be sold in satisfaction of the amount. 
The amount was not paid as d;rected and the property was therefore sold 
on April 7, 1958 to the appellant. As an application was made by the 
respondents on May 3, 1958 under 0. XXI, r. 90 the sale could not be 
confirmed under 0. XXI, r. 92 until this application was disposed of. 
The proceedings on the application 
continued up to October 7, 1958 
when an order was passed with the consent of the parties whereby the 
respondents were granted time till November 21, 1958 to deposit the 
amount due and the application under 0. XXI r. 90 was dismissed as 
withdrawn. 
When the matter came up before 
the executing 
court 
on November 22, the court noted that no amount had been deposited 
and although an application was made on behalf of the respondents 
for a further extension of time, the executing court held that as the 
society decree-holder and the auction purchaser were not willing to ex-
tend time, the court could not extend time which had been given under 
an agreement of the· parties by way of compromis-o. 
The court there-
fore confirmed the sale under 0. XXI r. 92. 
Mter appeals to the District Judge and a single bench of the High 
Court, a Division µench. in a Le!te~ Patent Appeal, held that 0. XXXIV 
~· 5 would apply m a cas~ ~f this kind and ·that even if it did not apply. 
it was a fundame?tal pnnciple that before a mortgagor could be prc-
".""ted from making the payment and redeeming the property, 
his 
nghts must. have come to an end and they would come to an end only 
when his title was lost by confirmation of sale. The court allowed the 
\'1)peal holding that \he applicatioi:i for extension of time was wrongly re-
1ected by th~ executing court as it had the pe>wer to grant an extension. 
It furt!'er direc~ that as some amount had been paid by he respon-
dents, tf on makm~ up the accounts it was found that any additional 
arno11!1!--Was due the court would give reasonable time for this to be 
deposited. 
On appeal to this Court, 
HELD : The order of the executing court refusing extension of time 
and confirmin~ the sale in favour of the apJ>~llant under O. XXI r. 92 
was correct. [702B! 
696 
SUPREME COURT REPORTS 
[1967] 3 S.C.R. 
It was not open to the executing court to extend time without the 
consent of parties, for time between October 7, 1958 to November 21, 
1958 was granted by consent of parties. 
Section 148 of the Code of 
Civil Procedure would not apply in· these circumstances. 
[701H] 
Though 0. XXXIV r. 5 (I) recognises the 
right of the judgment• 
dobtor to pay the decretal amount in an execution relating to a mort-
gage decre~ for sale at any time before the corifirmation of sale, the rule 
does not give any power to the court tp grant time to deposit the money 
after the .final decree has been passed. 
It is not open to the court to 
go on fixmg date after date and postponing confirmation of 8ale merely 
to accommodate a judgment-debtor. 
A 
harmonious 
construction 
of 
O. XXXIV r. 5 and O. XX! r. 92 makes it clear that if the provisions of 
0. XX! r. 92(1) apply the sale must be confirmed unless b~fore the con-
firmation the mortgagor judgment-debtor has 
deposited the amount as 
permitted by 0. XXXIV r. 5. 
[699D-E. H; 700E] 
Janak Rai v. Gurdial Singh [1967] 2 S.C.R. 77. referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeals No. 1005 of 
1964. 
. 
Appeal by special leave from the judgment and order dated 
July 12, 1962 of the Bombay High Court, Nagpur Bench in appeal 
No. 16 of 1960 under the Letters Patent. 
A. S. Bobde, G. L. Sanghi, and 0. C. Mat

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