V.K. PALANIAPPA CHETTIAR (DEAD) BY LRS. versus RAMASAMI GOUNDER AND ANR.

Citation: [2001] 3 S.C.R. 10 · Decided: 17-04-2001 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
V.K. PALANIAPPA CHETTIAR (DEAD) BY LRS. 
RAMASAMI GOUNDER AND ANR. 
APRIL 17, 2001 
[D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.] 
Code of Civil Procedure, i908: Order 21, Rules 90 and 92 and Order 
34 Rule 5, Auction sale-Confirmation-Challenge-Sale of judgment-deb tor '.s 
property confirmed under 0.21 R.92-Application under 0. 21 R. 90 
C dismissed-Appellate court dismissed appeal against dismissal of application 
under 0. 21 R. 90 but allowed application under 0. 34 R. 5 to set aside the 
sale on deposit of decretal amount-No revision against dismissal of his 
application under 0. 21 R. 90 filed by judgment-debtor-However, High 
Court allowed revision petition of auction-purchaser-Correctness of-Held: 
D Judgment-debtor is required to deposit all amounts due in court before 
confirmation of sale-Application under 0. 35 R. 5 is maintainable during 
pendency of the appeal-Since no revision against dismissal of his appeal 
is filed by the judg111ent-debt01; confirmation of sale has become final-The 
two orders, one dismissing the appeal and the other allowing the application, 
would not co-exist being self-contradict01y-He11ce, High Court rightly 
E allowed the revision petition filed by the auctio11-purchase1: 
F 
The appellant-judgment-debtor created two mortgagees in favour of 
respondent No. 2. The mortgagee filed a suit for recovery of mortgage money, 
which was decreed. Res110ndent No. 2-auction-1mrchaser purchased the suit 
1>rope11y in auction. The auction sale was confirmed under Order 21 Rule 92 
of the Code of Civil Procedure, 1908 and the ap1>lication 1>referred by the 
appellant under Order 21 Rule 90 CPC to set aside the auction-sale was 
dismissed. 
The appellant preferred an appeal against the dismissal of his 
a1>J>lication moved under Order 21 Rule 90 CPC. The appdlant also moved an 
G application under Order 34 Rule 5 CPC to set aside the sale on deposit of the 
decretal amount The a1>pellate court dismissed the ap1>eal but allowed the 
application mov~d under Order 34 Rule 5 CPC. 
The respondent No. 2-auction-purchaser preferred a Revision under 
H Section 115 CPC before the High Court against the order allowing the 
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V.K. PALANIAPPA CHETTIAR v. RAMASAMI GOUNDER 
11 
appellant's application under Order 34 Rule 5 CPC. The appellant, howevc!", A 
did not file any revision against the dismissal of his ap1>eal. The High Court 
held that the two orders of the appellate court, one dismi§sing the a1>p"-al and 
the other allowing the api)lication under Order 34 Rule 5 CPC, were self-
contradictory and, therefore, alJowed the re\ision filed liy respondent No. 2. 
Hence this appeal. 
B 
Dismissing the appeal, the Comi 
HEI~D : 1.1. A persual of Order 34 Rule 5 of the Code of Civil Procedure, 
1908 would make it clear that the jud~'1nent-debtor is ·required to make the 
dc1>0sit of all amounts due in court, on or before the day fixed or any dme 
before the confirmation of sale is made in pursuance of a final decree passed c 
under Sub-rule (3). [15-F] 
1.2. In the prese~t case, admittedly, the ap1>lication was moved under 
Order 34 Rule 5 CPC, after the order of confirmation of sale was passed 
rejecting the ob.iections preferred by the judgment-debtor under Order 21 
D 
Rule 90 CPC but during the pendency of aJlJ?Cal against the above noted order 
11assed by the execution court. The correctness of the contention raised on 
behalf of the judgment-debtor about the maintainability of the application 
under 01·dcr 34 Rule 5 CPC is not in doubt Nomithstanding the confirmation 
of sale, Order 34 Ruic 5 CPC would still be attracted where appeal against 
the order of confirmation is pending, as till the appeal is finally decided, the E 
saie does not become absolute. [15-G-H; 16·A] 
Magan/a/ v. Mis. Jaiswal Industries, [1989] 4 SCC 344, relied 011. 
Sri Ranga Nilayam Rama Krishna Rao v. Kandokori Chellayamma alias 
Manganuna. [1950] SCR 806 and U. Nilan v. Kannayyan (Dead) through F 
LRs., [1999] 8 SCC 511, referred to. 
S. V Ramalingam v. K. Rojagopal, (1975) 2 MLJ 494 (Mad.) and 
Velliammal v. Subramania Iyer, (1964) 1 MLJ 275 (Mad.), approved. 
2. The confirmation of sale would be absolute only after final orders 
are passed in ap[Jeal. The reason being that in case the appeal su.cceeds, G 
there would be no confirmation of the sale and in such circumstances, an 
application moved under Order 34 Rule 5 CPC during the pendency of the 
ap1>cal would be deemed to have been moved bef
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