S.V. RAMALINGAM AND ORS. Vs. K.E. RAJAGOPALAN AND ANR.

JUDGEMENT

(1.) THE petitioners in E.A. No. 899 of 1967 (defendants 1, 6 and 7) in O.S. No. 63 of 196 3 on the file of the Court of the Subordinate Judge of Madurai are the appellants in the C.M.A. and the petitioners in the C.M.P. The Civil Miscellaneous Petition filed during the pendency of the appeal has raised the controversy whether the mortgagors are entitled to redeem the mortgage subsequent to the confirmation of sale by the executing Court, but before the disposal of the appeal preferred against the validity of the sale.

(2.) THE appeal and the petition have come to be filed in the following circumstances. For the sake of convenience, the parties will be referred to as they are arrayed in the civil miscellaneous petition. On foot of a mortgage dated 7th January, 1961 for Rs. 7,500 executed by the first petitioner and his sons (petitioners 2 and 3 being two of the sons) in favour of the first respondent the latter obtained a preliminary and a final decree in O.S. No. 63 of 1963 and the hypotheca was brought to sale and it was purchased by the second respondent. The abovesaid mortgage was the third mortgage of the suit property. The second respondent, though the brother of the first respondent, is himself the first mortgagee of the suit property, the said mortgage being an order dated 3rd November, 1960 for Rs. 63,000. There is also a second and a fourth mortgage of the suit property, but about which detailed mention is not called for in these proceedings. It may, however, be stated that the second mortgage dated 3rd November, 1960, for Rs. 12,000 is in favour of Madurai Cocoa Company, in which the second respondent's son K. Jayaraman is a partner. The fourth mortgage dated 29th November, 1962, is in favour of another son the second respondent by name K. Subramaniam. The preliminary decree passed in O.S. No. 63 of 1963 was for Rs. 11,531 -41 P. and it was passed on 31st October, 1963. As already stated the mortgagors did not pay the money decreed under the preliminary decree and hence the final decree was passed on 16th March, 1964. Thereafter, the hypotheca was brought to sale and it appears the mortgagors filed as many as eighteen applications for adjournment of the sale, managing to get adjournments on each occasion by paying sundry amounts, totalling in all to Rs. 7,550. After the nineteenth application for adjournment was dismissed, the hypotheca was sold on 25th July, 1966 for a sum of Rs. 46,000 subject to the prior order and mortgage, and, as already referred, the second respondent was the successful bidder at the auction.

(3.) AGGRIEVED by the dismissal of their petition, E.A. No. 899 of 1967, the petitioners preferred C.M.A. No. 175 of 1972 to this Court. When the appeal was about to be taken up for hearing K.N. Balasubramaniam, learned Counsel for the petitioners filed C.M.P. No. 8385 of 1974 under Order 34, Rule 5 and Section 151, Civil Procedure Code, and the petitioners prayed therein that they should be permitted to pay the balance of the decree amount and redeem the mortgage and the first respondent, viz., the decree -holder should be called upon to enter full satisfaction on such deposit being made. In the affidavit in support of the petition, the first petitioner averred that inasmuch as an appeal had been preferred against the dismissal of E.A. No. 899 of 1967 the confirmation of the sale made by the executing Court had not become final and consequently, the petitioners were entitled to invoke the right of redemption granted to mortgagors under Order 34 , Rule 5and tender the balance of the decree amount.