U. NILAN versus KANNAYYAN (DEAD) THROUGH LRS.

Citation: [1999] SUPP. 3 S.C.R. 395 · Decided: 05-10-1999 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Dismissed

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Judgment (excerpt)

r 
U. NILAN 
v. 
KANNA YYAN (DEAD) THROUGH LRS. 
OCTOBER 5, 1999 
(S. SAGHIR AHMAD AND S. RAJENDRA BABU, JJ.] 
Code of Civil Procedure, 1908--0rder 34 Rule 5, Order 21 Rules _89, 
90, 91, 92 and 95-Mortgage deed-Suit for recovery of mortgage 
money-Decreed-Non-payment of decretal amount-Auction sale-Confir-
mation of sale-Appeals---Pendency of-Application for deposit of m01tgage 
money under Order 34 Rule 5-Maintainability of-Held, can be maintained 
even after confinnation of sale but dwing the pendency of appeal against an 
order rejecting an application for setting aside sale or confirmation of 
sale-Sale does not became absolute merely on passing an order of confir-
mation but only on disposal of appeals pending. 
Limitation Act, 1908-Article 18(}-Sale-Confinnation of sale-Ap-
plication for delivery of possession-Filling of-Prescribed period of three 
years-Reckoning of-Held, the prescribed period would run not from the date 
of confinnation of sale but from the date when the appeals are disposed 
of-Civil Procedure Code, 1908--0rder 21 Rule 95. 
The predecessor-in-interest of respondent mortgaged his property 
by depositing the title deeds in favour of appellant. Appellant filed a suit 
A 
B 
c 
D 
E 
for recovery of mortgage money which was decreed. On non-payment of 
decretal amount1 the rroperty was put to auction and sale was conducted. 
Respondent mortgagor's application for setting aside the sale was dis-
F 
missed in default and sale was confirmed. Thereafter, respondent made 
applications for setting aside the confirmation of sale for restoration of 
application for setting aside sale. On rejection, appeals were filed before 
High Court. In the meantime, respondent made an application under 
Order 34 Rule 5 CPC for deposit of mortgage money which was allowed G 
and the mortgage was discharged. Hence the present appeal. 
On behalf of appellant it was contended that the application of the 
respondent for setting aside the sale having been dismissed in default by 
the Trial Court and the application for restoration also having been 
dismissed, the sale as also its confirmation in favour of the appellant, H 
395 
396 
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R. 
A should be treated to have been upheld by the High Court. Consequently, 
the High Court was not justified in allowing the application under Order 
34 Rule 5 CPC. 
On behalf of respondent-mortgagor it was contended that 
when the applications for setting aside the order for default of dismissal 
B was rejected, an appeal was filed in the High Court and it was during the 
pendency of that appeal that an application under Order 34 Rule 5 CPC 
was filed for depositing the balance of the mortgage money. Thus, the 
applic;ition under Order 34 Rule 5 CPC cannot be said to be not main-
tainable and Court had rightly discharged the mortgage. 
c 
Dismissing the appeal, the Court 
HELD : 1.1. Application filed by the respondent-mortgagor for 
deposit of mortgage money under Order 34 Rule, 5, Civil Procedure Code 
1908, -during the pendency of appeals before the High Court against 
D confirmation of sale, is maintainable. [400-H; 401-A-D] 
1.2. An application under Order 34 Rule 5 CPC can be filed or moved 
by the mortgagor for the deposit of mortgage money at any time before the 
confirmation of sale. The sale of property, in execution of decree, does not 
become absolute merely on the passing of an order confirming the sale 
E under Order 21 Rule 92 but if there has been an appeal against an order 
rejecting an application for setting aside the sale, made either under Order 
21 Rule 89 or Rules 90 or 91, the sale would not become absolute till the 
disposal of that appeal. Further, the limitation of three years prescribed 
under Article 180 of the Limitation Act, 1908 for making an application for 
F delivery of possession under Order 21Rule95 would run, not from the date 
on which the sale is confirmed under Order 21 Rule 92 but from the date 
on which the appeals are disposed of. [402-G; 405-D; E; F] 
Chandra Mani Saha and Ors. v. Anarjan Bibi and Ors., AIR (1934) 
Privy Council 134 and Maganlal & Anr. v. Jaiswal Industries Neemach & 
G Ors., [1989] 3 SCR 696, relied on . 
Hukamchand v. Bansilal & Ors., [1967] 3 SCR 695, referred to. 
Chhogan Lal Bagri v. Behari Lal Shah Ray, AIR (1933) Cal. 311; 
Kandukuri Chellamma alias Mangamma & Anr. v. Shri Ranganilayam 
H Ramakrishnarao, I.L.R. (1946) Madras 795 = AIR (1946) Madras 337; 
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U. NILANv. KANNAYYAN [S. SA

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