PHILOMINA JOSE versus FEDERAL BANK LTD. AND ORS.

Citation: [2006] 2 S.C.R. 1 · Decided: 02-02-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

( 
t 
PHILOMINA JOSE 
A 
v. 
FEDERAL BANK LTD. AND ORS. 
FEBRUARY 2, 2006 
[ARIJJT PASAYAT AND TARUN CHATTERJEE, JJ.] 
B 
Code of Civil Procedure, I 908: 
Order 34 Rule 5-Sale decree-Right of redemption-Availability of-
Denial on the ground that on passing of sale decree, mortgage debt merged C 
into the decree and substitution of Order 34 by Kera/a amendment-Held: 
Right of redemption of mortgage is a substantive right of mortgagor which 
accrues to him to be exercised under Order 34 Rule 5 when the decree was 
passed-It cannot be taken away by the amendment of order 34 which was 
made only after the decree-Such right is available till confirmation of sale in D 
pursuance to the decree-There was no final decree, thus denial of redemption 
+ not correct-Order 2 I Rule 92. 
Section 33-Decree-Passing of-Incorporation of all clauses mentioned 
'i 
in the provisions under which decree is passed-Held: Not necessary-While 
\ 
interpreting such decree, it must be read as if all the provisions therein are E 
incorporated in the decree. 
Sale decrees were passed in 1989 and 1985 respectively. At that time 
Code of Civil Procedure was in force in the State of Kerala. In year 1974, 
order 34 was amended so far as State of Kerala is concerned. The Code of 
Civil Procedure (Amendment) Act, 1976 came into force on 1.2.1977 and by F 
virtue of section 97(1) of the Code, order 34 as it existed before 1.2.1977 stood 
repealed. Order 34 was incorporated in the Code with effect from 20.11.1990. 
Judgment debtors prayed for redemption in terms of Order 34 Rule 5 of the 
Code. High Cllurt dismissed the petitions holding that by passing of the decree 
for sale, the mortgage debt merged into the decree and thereafter right to G 
redemption is not available and that by the time the applications were filed, 
the Code as amended by substituting Order XXXIV did not contain a similar 
 
provision with effect from 20.11.1990. 
Allowing the appeals, the Court 
1 
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2 
SUPREME COURT REPORTS 
[2006] 2 S.C.R. 
A 
HELD:t.I. The right of the mortgagor to redeem the property is 
available to him till the confirmation of the sale in pursuance to the decree. 
Right of redemption of a mortgage is a substantive right of mortgagor which 
has accrued to him to be exercised under Order 34 Rule 5 of the Code of 
Civil Procedure, 1908 when the decree was passed which cannot be taken away 
by the amendment of order 34 of the Code which was made only after the 
B decree passed in this case. An application under Order 34 Rule 5 is 
maintainable until the final determination of proceedings to set aside the sale 
under Order 34 either by way of appeal or revision. (6-F; 7-F-GI 
Shea Narain Sah v. Mt. Deolchan Kuer, AIR (1943) Patna 208, 
C disapproved. 
Mhadagonda Ramgonda Patil and Ors. v. Shripal Ba/want Rainade & Ors., 
(1988] 3 sec 298, relied on. 
Mangan/al v. Mis. Jaiswal Industries Neemach & Ors., [1989) 4 SCC 344, 
D New Kenilworth Hotel (P) ltd. v. Ashoka Industries Ltd & Ors., (1995) I SCC 
161, S. Sivaprakasam v B. V. Muniraj & Ors., (19971 9 SCC 636, U. Nilan v. 
Kannayyan (Dead) Through Lrs., 11999) 8 SCC 511, Kharaiti Lal v. Raminder 
Kaur & Ors., (2000) 3 SCC 664 and V.K Palaniappa Chettiar (Dead) by LRs v. 
U. Ramaswamy Grounder & Anr., (2001] 4 SCC 413, relied on. 
E 
1.2. The decrees in the case were passed at a time when the Code was 
in force in the State of Kerala and the amendment in 1974 so far as the State 
of Kerala is concerned was not operative. Composite decrees were passed in 
both under order XXXIV Rule 4 and 5 together. Those were the provisions 
in regard to enforcement of mortgages, and whatever may be the wording of 
th~decree, they shall be deemed to be passed under Order 34 Rule 5 as it 
F stood at the time of the passing of the decree. It Is not necessary that all the 
clauses mentioned in the provisions unde1 which the decree is passed should 
be incorporated in the decree. While interpreting such a decree, it must be 
read as if all the provisions therein are incorporated in the decree. The Court 
may not at the time of passing of the decree, be aware as to which contingency 
G will happen in future. Each of the decrees was under Order XXXIV Rule 5 
of the Code as it stood before 20.11.1990. [6-G, H; 7-A-BJ 
1.3. The effect of Section 97(1) of the Amendment Act is that all the 
local amendments made to any of the provisions of the Code either by a State 
Legislature or by a High Court which were inconsistent with the Code as 

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