l Appeals No 1005 of 1964
Appeal by special leave from the judgment and order dated July 12 1962 of the Bombay High Court Nagpur Bench in appeal No 16 of 1960 under the Letters Patent
A section Bobde G L Sanghi and O C Mathur for the appellant
N C Chatterjee and M section Gupte for respondents Nos 1 and 2
W section Barlingay and A G Ratnaparkhi for respondent No 4
The Judgment of the Court was delivered by Wanchoo CJ
This is an appeal by special leave from the judgment of the Bombay High Court and arises in the following circumstances
The respondents were members of a Co operative Housing Society and had created a mortgage on their property in favour of the society
As the amount due under the mortgage was not paid the matter was referred to the Registrar Co operative Societies and he made an order dated May 1 1957 that the respondents should pay a sum of Rs 9000 and odd and interest at Rs 12 per cent per annum from August 1 1953 till satisfaction of the debt due to the Society
The Registrar further directed that if the amount was not paid in cash to the society the property mentioned in his order would be sold in satisfaction of the amount
The order also provided that in case the amount due was not realised from the sale of the property the society would have the right to proceed against the respondents for the balance
The amount was not paid as directed in the order
Consequently an application was made to the civil court as provided by law for recovery of the amount under the order of the Registrar which amounted to a decree
In consequence the property on which charge was created by the order of the Registrar was brought to 697 sale
The sale was held on April 7 1958 and the appellant being the highest bidder the sale was concluded in his favour
Normally the sale would have been confirmed after 30 days if no application had been made under O XXI r 90 of the Code of Civil Procedure for O XXI r 92 inter alia provides that where no application is made under r 89 r 90 or r 91 or where such application is made and disallowed the court shall make an order confirming the sale and thereupon the sale shall become absolute
As an application had been made on May 3 1958 under O XXI r 90 the sale could not be confirmed till that application was disposed of
Proceedings under O XXI rule 90 seem to have gone on upto October 7 1958
On that day it appears that one of the respondents gave evidence as a witness
Thereafter it was the turn of the Society decree holder to give evidence
But before the evidence of the society began it appears that respondents requested for one month s time to deposit the decretal amount along with the auction purchaser s commission
They also appear to have stated that in that event they were prepared to withdraw their application under O XXI r 90
The society as well as the auction purchaser had no objection to time being allowed
The executing court therefore granted time to the respondents till November 21 1958 to deposit the entire decretal amount along with the auction purchaser s commission
After time was thus allowed with consent of the parties the application under O XXI r 90 was dismissed as withdrawn with no order as to costs
On November 20 1958 an application was made by he respondents in which they referred to what had been ordered on October 7 1958
They further stated that November 21 1958 was a holiday and it was not possible to deposit the amount on that day though they were prepared to do so
They consequently prayed for time for one day so that the deposit might be made on November 22 1958
No order was passed on this application on November 20 1958 though it bears an endorsement of the executing court to the effect that it had been filed on November 20 1958
November 21 1958 being a holiday it appears that the matter came before the executing court on November 22
On that day the court noted that no amount had been deposited
The order sheet also shows that counsel for the respondents prayed for time for a fortnight
The society decree holder as well as the auction purchaser appellant opposed the prayer for extension of time
The executing court held that as the society decree holder and the auction purchaser were not willing to extend time the court could not extend time which had been given under an agreement of the parties by way of compromise
The court therefore rejected the prayer for extension of time and thereafter confirmed the sale as required by 0 XXI r 92 as the application under O XXI r 90 had already been dismissed on October 7 1958
698 The respondents went in appeal to the District Judge
He held that the court had always the power whether under section 148 of the Code of Civil Procedure or otherwise to postpone passing of orders confirming sale of immovable properties
He went on to hold that the executing court erred in holding that it had no power to grant further extension of time
The appeal was therefore allowed the order of the executing court set aside and the case remitted to
the executing court for deciding the application for extension of time on merits
It may be mentioned that though the District Judge said in the order that the application presented on November 22 1958 for granting further time would be disposed of after hearing parties and considering the merits of the case there was in fact no written application on November 22 1958 and there was only an oral prayer
That however makes no difference to the main question before us
There was then a second appeal by the appellant to the High Court
A question was raised in the High Court whether O XXXIV r 5 applied to the present case
The learned Single Judge seems to have held that O XXXIV r 5 did not apply
He further held that in view
of the provisions of O XXI r 92 the sale was rightly confirmed and section 148 of the Code of Civil Procedure could not under the circumstances be invoked
The appeal therefore was allowed and the order of the executing court restored
Then there was a Letters Patent Appeal by the respondents
The Division Bench appears to have held that O XXXIV r 5 would apply in a case of this kind
It also went on to say that even if O XXXIV r 5 did not apply it was a fundamental principle that before a mortgagor could be prevented from making the payment and redeeming the property his rights must have come to an end and they would come to an end only when his title was lost by confirmation of sale
It went on to hold that if the application for extension of time was wrongly rejected if the mortgagor had the right and the court had the power to grant adjournment it would be open in appeal to consider whether the executing court refused the adjournment properly or not
If in appeal the court came to the conclusion that the order of the executing court refusing extension of time was wrong the confirmation which followed on such wrong order would fall and the mortgagor judgment debtor would be entitled to deposit the amount
It appears that as the respondents had deposited some money after the order of the District Judge in appeal the Letters Patent Bench allowed the appeal set aside the order of the learned Single Judge and restored the order of the District Judge and further set aside the order of confirmation made by the executing court on November 22 1958
It also ordered that the amount lying in deposit should be paid to the decree holder mortgagee and the auction purchaser
It may be added that this deposit was not made before the confirmation 69 9 of sale on November 22 1958 but long afterwards in 1959
It further directed that if on making up the accounts it was found that any additional amount had to be deposited the court would give reasonable time to the judgment debtors namely the present respondents before us
The High Court having refused leave to appeal the appellant obtained special leave from this Court and that is how the matter has come before us
The principal question that arises for decision in this case is whether the executing court was right in the view that it could not extend time which had been given by consent of parties on October7 1958
If that view is correct there would be no difficulty in holding in view of O XXI r 92 that the order confirming sale was proper
We shall proceed on that assumption that O XXXIV c 5 applies in the present case and that the order of the Registrar which was under execution was a final decree in a mortgage suit
O XXXIV r 51 gives an opportunity to the judgment  debtor in a mortgage decree for sale to deposit the amount due under the mortgage decree at any time before the confirmation of sale made in pursuance of the final decree and if such a deposit is made the court executing the decree has to accept the payment and make an order in favour of the judgment debtor in terms of  O XXXIV r 5 1
Though O XXXIV r 5 1 recognises the right of the judgment debtor to pay the decretal amount in an execution relating to a mortgage decree for sale at any time before the confirmation of sale that in our opinion does not mean that be said rule gives power to the court to extend time for payment on an application made by the judgment debtor
There is no pro vision in O XXXIV r 5 1 like that contained in O XXXIV r 4 2 to extend time for payment after the final decree is passed in a mortgage suit
As we read O XXXIV r 5 it only permits he judgment debtor to deposit the amount due
under the decree and such other amount as may be due in consequence of a sale having taken place provided the deposit is made before the confirmation of sale
But there is no power in O XXXIV r 5 1 to grant extension of time and postpone confirmation of sale thereor
The observation of the District Judge that the court has always the power to postpone passing orders confirming sale of immovable property is in our view incorrect in the face of the provisions contained in O XXI r 92 1
That provision makes it absolutely clear that if no application is made under r 89 r 90 or r 91 or where such application is made and disallowed the court has to make an order confirming the sale and thereupon the ale becomes absolute
It is not open to the court to go on fixing late after date and postponing confirmation of sale merely to accommodate a judgment debtor
If that were so the court may go on postponing confirmation of sale for years in order to accommodate a judgment debtor
What O XXI r 92 contemplates is that where conditions thereunder are satisfied an order for confirmation 700 must follow  Further we have already indicated that O XXXIV r 5 does not give any power to court to rant time to deposit the money after the final decree has been passed
All that it permits is that a judgment debtor can deposit the amount even after the final decree is passed at any time before the confirmation of sale and if he does so an order in terms of O XXXIV r 5 1 in his favour has to be passed
With respect we cannot understand what the Letters Patent Bench meant by saying that before a mortgagor could be prevented from making payment and redeeming the property his rights must have come to an end and that they could not come to an end unless his title to the property had been lost by confirmation of sale
It is true that so long as his right to redeem subsists the mortgagor may redeem the property
It is this principle which is recognised in O XXXIV r 5 which provides that the mortgagor judgment debtor can deposit the amount due even after the final decree has been passed but this deposit must be made at any time before confirmation of sale
It may be noted that there is no power under O XXXIV r 5 to extend time and all that it does is to permit the mortgagor judgment debtor to deposit the amount before confirmation of sale
It does not give any right to the mortgagor judgment debtor to ask for postponement of confirmation of sale in order to enable him to deposit the amount
We have to interpret O XXXIV r 5 and O XXI r 92 harmoniously and on a harmonious interpretation of the two provisions it is clear that though the mortgagor has the right to deposit the amount due at any time before confirmation of sale there is no question of his being granted time under O XXXIV r 5 and if the provisions of O XXI r 92 1 apply the sale must be confirmed unless before the confirmation the mortgagor judg ment debtor has deposited the amount as permitted by O XXXIV r 5
We may in this connection refer to the decision of this Court in Janak Rai vs Gurdial Singh1 where it has been laid down that once the conditions of O XXI r 92 1 are complied with the executing court must confirm the sale
It is on these principles that we have to decide whether the trial court was correct
We have already indicated that the sale was held on April 7 1958 and in the normal course it would have been confirmed after 30 days unless an application under r 89 r 90 or r 91 of O XXI was made
Besides this case is as we have already assumed analogous to the case of a final mortgage decree
The judgment debtor mortgagor had the right to deposit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under O XXXIV r 5 1  so long as the sale was not confirmed
If the amount had been deposited before the confirmation of sale the judgment debtors had the right to ask for an order in terms of 1  70 1 O XXXIV r 5 1 in their favour
In this case an application under O XXI r 90 had been made and therefore the sale could not be confirmed immediately after 30 days which would be the normal course the confirmation had to await the disposal of the application under O XXI r 90
O Chat application was disposed of on October 7 1958 and was dismissed
It is obvious from the order sheet of October 7 1958 that an oral compromise was arrived at between the parties in court on that day
By that compromise time was granted to the respondents to deposit the entire amount due to the decree holder and the auction purchaser by November 21 1958
Obviously the basis of the compromise was that the respondents withdrew their application under O XXI r 90 while the decree holder society and the auction purchaser appellant agreed that time might be given to deposit the amount up to November 21 1958
If this agreement had not been arrived at and if the application under O XXI r 90 bad been dismissed for example on merits on October 7 1958 the court was bound under O XXI r 921 to confirm the sale at once
But because of the compromise between the parties by which the respondents were given time up to November 21 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties
But the fact remains that the application under O XXI r 90 had been dismissed on October 7 1958 and thereafter the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21 1958
Now let us see what happened about November 21 1958
On November 20 1958 an application was made by the respondents praying that they might be given one day more as November 21 1958 was a holiday
No order was passed on that date but it is remarkable that no money was deposited on November 20 1958
When the matter came up before the court on November 22 1958 no money was deposited even on that day
Now under O XXXIV r 5 it was open to the respondents to deposit the entire amount on November 22 1958 before the sale was confirmed but no such deposit was made on November 22 1958
On the other hand counsel for the respondents prayed to the executing court for extension of time by 14 days
The executing court refused that holding that time upto November 21 1958 had been granted by consent and it was no longer open to it to extend that time
The executing court has not referred to O XXI r 92 in its order but it is obvious that the executing court held that it could not grant time in the absence of an agreement between the parties because O XXI r 92 required that as the application under O XXI r 90 had been dismissed the sale must be confirmed
We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties for time between October 7 1958 to November 21 1958 was granted by consent of parties
Section 148 of the Code Civil Procedure would not apply 702 in these circumstances and the executing court was right in holding that it could not extend time
Thereafter it rightly the sale as required under O XXI r 92 there being no question of the application of O XXXIV r 5 for the money had not been deposited on November 22 1958 before the order of confirmation confirmed was passed
In this view of the matter we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct
it is however urged that it does not appear that the time was  ranted on October 7 1958 by consent of parties because the respondents had only asked for one month s time and the court gave time for about six weeks
It appears however that the grant of time on October 7 1958 was as a result of an oral compromise between the parties
This is quite clear from the fact that the application under O XXI r 90 was withdrawn on the basis that time would be granted
The fact that time was actually granted for six weeks does not mean that that was done without the consent of the parties
It seems to us that the whole thing took place in the presence of the court and the order granting time upto November 21 1958 must in the circumstances be read as a consent order
It is borne out by the fact that on November 22 1958 the same presiding judge of the executing court said that time had been granted with the consent of the parties by way of compromise
We cannot therefore accept the contention that time was not granted by consent of parties and therefore the court had power under section 148 to extend time which had already been granted
We allow the appeal set aside the order of the Letters Patent Bench and of the District Judge and restore that of the executing court dated November 22 1958
It follows that the sale stood confirmed in favour of the appellant on November 22 1958
We direct that the respondents judgment debtors will pay the costs of the appellant throughout
The money deposited by the respondent can be taken back by them
RKPS Appeal allowed
L7 Sup67 17 5 68 2500 GIPF


Summary:
The respondents were members of a Cooperative housing society and had created a mortgage on their property in favour of the society
As an amount due under the mortgage was not paid the matter was referred to the Registrar of Cooperative Societies and he made an order on May 1 1957 directing the respondent to pay the amount due from August f 1953 till the debt was discharged
He further directed that if the amount was not paid the property could be sold in satisfaction of the amount
The amount was not paid as directed and the property was therefore sold on April 7 1958 to the appellant
As an application was made by the respondents on May 3 1958 under O XXI r 90 the sale could not be confirmed under O XXI r 92 until this application was disposed of
The proceedings on the application continued up to October 7 1958 when an order was passed with the consent of the parties whereby the respondents were granted time till November 21 1958 to deposit the amount due and the application under O XXI r 90 was dismissed as withdrawn
When the matter came up before the executing court on November 22 the court noted that no amount bad been deposited and although an application was made on behalf of the respondents for a further extension of time the executing court held that as the society decree holder and the auction purchaser were not willing to extend time the court could not extend time which had been given under an agreement of the parties by way of compromise
The court therefore confirmed the sale under O XXI r 92
After appeals to the District Judge and a single bench of the High Court a Division Bench in a Letters Patent Appeal held that O XXXIV r 5 would apply in a case of this kind and that even if it did not apply
it was a fundamental principle that before a mortgagor could be pre vented from making the payment and redeeming the property
his rights must have come to an end and they would come to an end only when his title was lost by confirmation of sale
The court allowed the appeal holding that the application for extension of time was wrongly rejected by the executing court as it had the power to grant an extension
It further directed that as some amount had been paid by he respon dents if on making up the accounts it was found that any additional amount was due the court would give reasonable time for this to be deposited
On appeal to this Court HELD  The order of the executing court refusing extension of time and confirming the sale in favour of the appellant under O XXI r 92 was correct
702B 696 It was not open to the executing court to extend time without the consent of parties for time between October 7 1958 to November 21 1958 was granted by consent of parties
Section 148 of the Code of Civil Procedure would not apply in these circumstances
701H Though O XXXIV r 51 recognises the right of the judgment debtor to pay the decretal amount in an execution relating to a mortage decree for sale at any time before the confirmation of sale the rule does not give any power to the court to grant time to deposit the money after the final decree has been passed
It is not open to the court to go on fixing date after date and postponing confirmation of sale merely to accommodate a judgment debtor
A harmonious construction of O XXXIV r 5 and O XXI r 92 makes it clear that if the provisions of O XXI r 921 apply the sale must be confirmed unless before the confirmation the mortgagor judgment debtor has deposited the amount as permitted by O XXXIV r 5
699D E H 700E Janak Rai vs Gurdial Singh   referred to