S. SIVAPRAKASAM versus B.V. MUNIRAJ AND ORS.

Citation: [1997] 3 S.C.R. 571 · Decided: 03-04-1997 · Supreme Court of India · Bench: K. RAMASWAMY, D.P. WADHWA · Disposal: Dismissed
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Judgment (excerpt)

S. SIVAPRAKASAM 
v. 
B.V. MUNIRAJ AND ORS. 
APRIL 3, 1997 
(K. RAMASWAMY AND D.P. WADHWA, JJ.] 
Code of Civil Procedure, 1908: Order 21, Rule 92 and Order 24 Rules 
4 and 5. 
A 
B 
M01tgage-Bank m01tgagee-M. M01tgagor-Forclosure suit filed by C 
11101tgagor bank-Preliminary and final decree passed-Objections against 
passing of final decree-A creditor filed a suit and obtained money 
decree-Executio11 of decree-Auction sale-Property purchased by K-Trans-
f er of property in favour of respo11de11ts-Applicatio11 filed by respondents 
under order 24-Rule 5 for passing a final decree-High Coult upheld passing 
of final decree in favour of subseque11t purchasers-Appeal before Supreme D 
Cowt-Held passing of final decree was valid-Section 52 of the Transfer of 
Property Act held i11applicable-Disti11ctio11 between Orders 21 and 34 ex-
plained. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2911 of E 
1986. 
From the Judgment and Order dated 23.9.85 of the Madras High 
Court in C.R.P. No. 4307 of 1984. 
S. Balakrishnan and S. Prasad for the Appellant. 
' ,, 
I 
Tripurari Ray for Vineet Kumar and Yatish Mohan for the Respon-
dents. 
The following Order of the Court was delivered : 
This appeal by special leave arises from the judgment of the learned 
single Judge of the Madras High Court, made on September 23, 1975 in 
CRP No. 4307 /84. The facts are little complicated, but to clear that clogs, 
they are as under : 
F 
G 
The Catholic Syrian Bank Ltd. was the mortgagee and Manickam H 
571 
572 
SUPREME COURT REPORTS 
[1997] 3 S.C.R. 
A Mudaliar was the mortgagor in respect of the plaint schedule property. To 
foreclose the mortgage O.S. No. 340/1951 was filed by the Bank. Prelimi-
nary decree was passed on December 20, 1951 and final decree came to 
be passed on August 28, 1952. When objections were raised against the 
passing of final decree pending those proceedings and later execution 
B thereof, one Palaniammal, a simple money creditor filed OS No. 321/1958 
against Manickam Mudaliar and obtained a money decree. In execution of 
the decree, the self-same property was brought to sale in which one 
Kandaswamy had purchased the property in court auction on September 
4, 1963. Admittedly, the same came to be confirmed and possession was 
taken under the said decree. Kandaswamy transferred the property in 
C favour of B.V. Muniraj and B.V. Rangaraj, respondent Nos. 1 and 2. 
Subsequently, the proceedings went on between the parties with which we 
are not concerned. Respondent Nos. 1 and 2 filed the application under 
Order XXXIV, Rule 5 CPC for passing a final decree in terms of sub-rule 
(1) of Rule 4 of Order XXXIV. That order came to be passed. Orders 
D passed on objections and the orders passed by the executing court under 
Order XXXIV, Rule 5 were the subject matter of the revision and were 
dealt with together. The learned single Judge has upheld the action of the 
Court below in passing the final decree in favour of the subsequent Court 
purchasers B.V. Muniraj and B.V. Rangaraj. Pending revision, they, in 
turn, sold the property to one S. Palaniswamy, who is the fifth respondent 
E 
herein. Thus, the question arises whether the appellant-purchaser of the 
property in the mortgage decree has a precedence over the purchaser in 
money decree in getting the final decree passed in the mortgage suit. 
F 
G 
H 
Order XXXIV, Rule 5, CPC provides as under : 
"5. Final decree in suit for sale - (1) Where, on or before the day 
fixed or at any time before the confirmation of a sale made in 
pursuance of a final decree passed under sub-rule (3) of this rule, 
the defendant makes payment into Court of all amounts due from 
him under sub-rule (1) of Rule 4, the Court shall, on application 
made by the defendant in his behalf, pass a final decree or, if such 
decree has been passed, an order -
(a) 
a ordering the plaintiff to deliver up the documents 
referred to in the preliminary decree, and, if 
necessary, -
S. SIV APRAKASAM. v. B.V. MUNIRAI 
573 
(b) 
ordering him to transfer the mortgaged property as A 
directed in the said decree, and also, if necessary, -
( c) 
ordering him to put the defendant in possession of the 
property. 
(2) Where the mortgaged property or part thereof has been sold B 
in pursuance of a decree passed under sub-rule (3) of this rule, 
the Court shall not pass an order under sub-rule (1) of this rule, 
unless the defendant, in addition to the amount mentioned in 
sub-rule (1), deposits in Court for pa
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