Case: Hukamchand Vs. Bansilal &amp; Ors

confirm the sale.8. 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 Rule 91 of Order 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 Order XXXIV, Rule 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 Order XXXIV, Rule 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 Order XXI, Rule 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order sheet of October 7, 1938 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, Rule 90 while the decree-holder society and the auction-purchaser appellant agreed that time might be given to deposit the amount upto November 21, 1958.If this agreement had not been arrived at and if the application under Order XXI, Rule 90 had been dismissed (for example, on merits) on October 7, 1958, the court was bound under O. XXI, Rule 92 (1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time upto 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 Order XXI, Rule 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, 1958.9. 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 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 Order XXXIV, Rule 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 Order XXI, Rule 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 Order XXI, Rule 92 required that as the application under Order 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 of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI, Rule 92 there being no question of the application of Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation 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.10. It is however urged that it does not appear that the time was granted on October 7, 1958 by consent of parties because the respondents had only asked for one months 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 Order XXI, Rule 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]If that view is correct, there would be no difficulty in holding in view of Order XXI, Rule 92 that the order confirming sale was proper. We shall proceed on the assumption that Order XXXIV, Rule 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. Order XXXIV Rule 5 (1) 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 Order XXXIV, Rule 5 (1). Though Order XXXIV, Rule 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 at any time before the confirmation of sale, that the said rule gives power to the court to extend time for payment on an application made by the judgment-debtor. There is no provision in Order XXXIV, R. 5 (1) like that contained in Order 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 the 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 Order XXXIV, Rule 5 (1) to grant extension of time and postpone confirmation of sale therefor. 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 Order XXI, Rule 92 (1). That provision makes it absolutely clear that if no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the court has to make an order confirming the sale and thereupon the sale becomes absolute. It is not open to the court to go on fixing date after date and postponing confirmation of sale merely to accommodate 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 Order XXI, Rule 92 contemplates it that where conditions thereunder are satisfied an order for confirmation must follow. Further we have already indicated that Order XXXIV, Rule 5 does not give any power to court to grant 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 Order XXXIV, Rule 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, Rule 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 Order XXXIV, Rule 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 Order XXXIV, Rule 5 and Order XXI, Rule 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 Order XXXIV, Rule 5 and if the provisions of Order XXI, Rule 92 (1) apply the sale must be confirmed unless before the confirmation the mortgagor judgment-debtor has deposited the amount as permitted by Order XXXIV, RuleWe 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 Rule 91 of Order 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 Order XXXIV, Rule 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 Order XXXIV, Rule 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 Order XXI, Rule 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order sheet of October 7, 1938 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, Rule 90 while the decree-holder society and the auction-purchaser appellant agreed that time might be given to deposit the amount upto November 21, 1958.If this agreement had not been arrived at and if the application under Order XXI, Rule 90 had been dismissed (for example, on merits) on October 7, 1958, the court was bound under O. XXI, Rule 92 (1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time upto 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 Order XXI, Rule 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,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 theCode of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI, Rule 92 there being no question of the application of Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation 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 wasappears 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 Order XXI, Rule 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.