KHARAITI LAL versus RAMINDER KAUR AND ORS.

Citation: [2000] 2 S.C.R. 445 · Decided: 15-03-2000 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

KHARAITI LAL 
v. 
RAMINDER KAUR AND ORS. 
MARCH 15, 2000 
[S. SAGHIR AHMAD AND D.P. W ADHW A, JJ.] 
Code of Civil Procedure, 1908 : 
Order 34 Rule 5, Order 21 Rule 90-Confirmation of sale-Mortgage 
suit-Auction sale-Application to set aside the sale, rejected-Confirmation 
of sale-Orders refusing to set aside. the sale and c01rfi.rmation of sale chal-
lenged in appeal-Deposits made pending appeal-Held, it would be open to 
judgment debtor to invoke provisions of Order 34 Rule 5 and make necessary 
deposits. 
The appellant mortgaged an industrial plot. Later the mortgagee 
filed a suit for foreclosure in order to recover the mortgage money by sale 
of the said plot and the building constructed thereon. A preliminary decree 
was passed directing the appellant to deposit the amount along with future 
interest. The appellant did not deposit the amount. The Court passed the 
final decree. In execution proceedings the property was auctioned and was 
purchased by the predecessor-in-interest of the respondents. The appellant 
challenged the auction-sale under Order 21 Rule 90 CPC. The Court 
rejected the objection and confirmed the auction-sale. The appellant filed 
appeals before the High Court and also deposited the amount. The Single 
Judge held that the appellant had already deposited the requisite amount 
under Order 32 Rule 5 CPC, and allowed the appeals and set aside the 
auction sale as also its confirmation. The respondents filed two letters 
patent appeals and the Division Bench allowed the same. Aggrieved, the 
mortgagor filed the present appeals. 
It was contended for the appellant that Order 34 Rule 5 CPC contem-
plated deposit before "confirmation of sale" and if the order by which the 
sale was confirmed was challenged in appeal, the sale would not be treated 
as confirmed unless the appeal was disposed of and; that since the appel-
lant had made the deposits during pendency of the appeals, the deposi~ so 
made were valid and could not have been treated to have been made "after 
confirmation." 
445 
A 
B 
c 
D 
E 
F 
G 
H 
446 
SUPREME COURT REPORTS 
[2000] 2 S.C.R. 
A 
Allowing the appeals, this Court 
B 
c 
HELD : If an appeal was pending against an order refusi~~ to set 
aside the sale, the confirmation of sale as also the issuance of Sale Certifi-
cate would be in a nebulous state and, consequently, it would be open to the 
judgment-debtor to invoke the provisions of Order 34 Rule 5 C.P.C. and 
make the necessary deposits to save his property from being transferred to 
a third person or, may be, to the decree-holder, in execution of the decree 
passed in the mortgage suit. [449-F] 
U. Nilan v. Kamzayyan (Dead) through Lrs., [1999] 8 SCC 511 = [1999] 
6Scale 358 = JT (1999) 7 SC621, reiterated. 
Maganlal & Am: v. Jaiswal Industries, Neemach & Ors., [1989] 4 SCC 
344 = [1989] 3 SCR 696 = AIR (1989) SC 2113, relied on. 
Hukamchand v. Bansilal & Ors., [1967] 3 SCR 695 =AIR (1968) SC 86, 
D 
distinguished. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2126-2127 of 
2000. 
From the Judgment and Order dated 2.7.98 of the Punjab & Haryana 
E 
High Court in L.P.A. No. 1172-73 of 1985. 
R.K. Kapoor, Sumit Kumar, S.K. Srivastava and Anis Ahmad Khan for 
the Appellant. 
Raju Ramachandran, Piyush Sharma and Pramod Dayal for the Re-
F 
spondents. 
\ 
G 
The Judgment of the Court was delivered by 
S. SAGHIR AHMAD, J. Leave granted. 
The appellant, who was the owner of a plot of land ril~asuring one and 
a half kanal, situated in Industrial Area, Chandigarh, had mortgaged the said 
land with one Col. Joginder Singh for a sum of Rs. 20,000 after raising certain 
constructions thereon. 
Col. Joginder Singh subsequently filed a suit for foreclosure in order 
H 
to recover the mortgage money by sale of Industrial Plot No. 255-P and the 
. ' 
KHARAITI LAL v. RAMINDER KAUR [S.S. AHMAD, J.] 
447 
building constructed thereon. A preliminary decree was passed in that suit 
on January 23, 1976, directing the appellant to deposit a sum of Rs. 
28,187.50 along with future interest at the rate of 9 per cent per annum on 
or before March 23, 1976. The amount was not deposited and, therefore, Col. 
Joginder Singh filed an application for final decree which was passed by the 
Sub-ordinate Court, Chandigarh, on April 8, 1976. The decree was put to 
execution and in execution proceedings, the property was auctioned on 
August 25, 1976. Nazar Singh, who is now represented by the present 
respondents, purchased the property at the auction

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