Decided on November 26,1974

Thomas Joseph Respondents


GEORGE VADAKKEL,J. - (1.) THE appellant -decree -holder obtained a decree for sale on the basis of a mortgage executed by the first defend - ant judgment -debtor in his favour.In execution of that decree the mortgaged property was sold for Rs.1,500.However,before the sale was confirmed the sixth defendant,a purchaser of the property after the mortgage,applied to set aside the sale under Order XXI,rules 89 and 90 of the.Code of Civil Procedure,1908.The sale was set aside and the execution court entered part satisfaction of the decree to the extent of Rs.1,500.The execution petition,pursuant to which the sale was held,was posted for further steps.However,the decree -holder did not pursue that application and due to many reasons the next application was filed in 1970 as E.P.169 of 1970.Thereupon the sixth defendant prayed for stopping the sale as per his E.A.595 of 1972 on the ground that the first defendant's right over the property was already sold for Rs.1,500 and that therefore the first defendant has mo more rights in the property.The execution court as well as the lower appellate court upheld the contention raised by the sixth defendant and the decree -holder has come up in appeal.
(2.) THE execution court as well as the lower appellate court held that.after the sale the first defendant had no more rights in the property;the lower appellate court also held that when the sixth defendant paid the sale amount and commission he was in effect extinguishing the charge given to the bank over the property;the lower appellate court further held,that the bank in getting the sale amount and commission from the sixth defendant was really acknowledging that the 1st defendant had no further right in the property.In the opinion of the lower appellate court even though the bank was legally not entitled to transfer the sale right because the sale was not confirmed,the transaction must be treated as one whereby the 6th defendant has extinguished the prior charge by paying off the value of that charge to the decree -holder bank.For these reasons the lower courts held that the decree -holder cannot be permitted ˜to proceed on the identical property which they had already proclaimed for sale and purchased and allowed the sale to be set aside after receiving the sale amount and commission &rsquo ;. I need only refer to the provisions in section 65 and Order XXI,rule 92 of the Code of Civil Procedure,1908 besides Order XXXIV,rules 5 and 8 to hold that all the premises upon which the lower courts have proceeded are unsustainable.Section 65 of the Code provides that where immovable property is sold in execution of a decree and such sale has become absolute,the property shall be deemed to have vested in the purchaser from the time when the property is sold.Rule 92 of Order XXI provides for confirmation of the sale whereupon the sale shall become absolute.These provisions read together mean that till confirmation *of sale or in other words till the sale has become absolute the property shall remain to be that of the judgment -debtor.In other words,so far as this case is concerned,the property that was sold shall remain that of the first defendant till the sale becomes absolute.The sale has not become absolute In this case because in the meanwhile there5was an application under rules 89 and 90 of Order XXI;pursuant to those applications sale was set aside and the amount deposited,no doubt,by the sixth defendant as a person interested,was allowed to be drawn by the decree -holder;part satisfaction of the decree was also entered.In these circumstances there can be no doubt that the first defendant had still rights in his property "all rights which he had prior to sale remained in him subsequent to sale also till confirmation of sale.In this view there cannot be any basis for the lower courts holding that after the sale the first defendant retained no further rights in the property.
(3.) THE lower appellate court has further gone to adjudicate upon the mortgage rights of the decree -holder bank.In view of the execution court having entered only part satisfaction of the decree to the extent of Rs.1,500 I do not understand how that court can in subsequent proceedings say that the charge itself has been extinguished wholly,for there was no other certification as,required by Order XXI,rule 2 of satisfaction of the decree -amount Order XXI,rule 2(3)prohibits the execution court from recognizing any payment or adjustment,which has not been certified or recorded as provided for in sub -rules(1)and(2)of rule 2.The lower courts did not refer to any other certification or recording.I am,therefore,of the view that there is absolutely no basis for the execution court to hold that the decree passed on the mortgage has been completely discharged.;

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