IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY. THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT the honourable SRI JUSTICE NYAPATHY CIVIL REVISION PETITIOM Kin. Petition filed under Article 227 by the Order dated 02.12.2023 2022 in OS No.467 of 2019 Judge, Tenali, Guntur District. VIJAY 3392 OF 20?.-^ of the Constitution of India passed in EA No. aggrieved of 2023 in EP No. 130 of on the file of the Court of Principal Junior Civil Between: Munaga Venkateswarlu R/o.D.No.1-3-17 District. S/o.Late Narasimha Rao, Medisettyvari Veedhi aged 60 years, Nazarpet, Tenali, Guntur ...Petitioner/Petitioner/Judgment Debtor AND Reddy, S/o.Late Anki Chinnaravuru, Tenali Town Yarava Tirupathi R/o.D.No.20-10-6, District. Reddy, aged 62 years, and Mandal, Guntur ...Respondent/Respondent/Decree Holder jA NO: 1 OF Petition filed under Section 151 of CPC circumstances stated in the affidavit filed i Court may be pleased to praying that in the in support of the petition, the High 2022 in 09 M proceedings in E.PNo.130 of 022 ,n OS NO.467 of 2019 on the flie of the Court of Principal Junior Judge, Tenali. pending disposal of main CRP. Civil Counsel for the Petitioner :Smt Nimmagadda Revathi Counsel for the Respondent :Sri MRS Srinivas The Court made the following: / / *THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY + C.R.P. No.3392 of 2023 % 31.01.2025 Between: Munaga Venkateswarlu ...Petitioner And Yarava Tirupathi Reddy ...RESPONDENT(S) Counsel for the Appellant: Smt. Nimmagadda Revathi Counsel for the Respondent(S): Sri M.R.S.Srinivas < Gist > Head Note: ? Cases Referred: 1 1988 (2) ALT 417 2 2000 (2) ALD 86 (SC) 3 2006 (2) see 608 4 2016 (2) ALD 751 5 AIR 1968 SC 86 (2017) 8 see 272 7 (2020) 3 ALD 326 6 APHC0106S1922023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] FRIDAY ,THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL REVISION PETITION NO: 3392/2023 Between: ...PETITIONER Munaga Venkateswarlu AND ...RESPONDENT Yarava Tirupathi Reddy Counsel for the Petitioner: 1. NIMMAGADDA REVATHI Counsel for the Respondent: 1.M RSSRINIVAS The Court made the following: THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL REVISION PETITION N0.3392 of 2023 ORDER: The present Civil Revision Petition is filed questioning the Order dated 02.12.2023 passed in un-numbered E.A.No. E.P.No.130 of 2022 O.S.No.467 of 2019 by the Principal Junior Civil Judge, Tenali, Guntur District in rejecting the petition. of 2023 in The introductory facts: The Petitioner is the Defendant. The 2. suit O.S.No.467 of 2019 was filed for recovery of money due under a registered Mortgage Deed dated 14.05.2009. A Preliminary Decree was passed on the contest on 26.08.2021. Thereafter, a Final Decree in I.A.No.1160 of 2021 was passed on 07.05.2022 for auctioning the scheduled property as the Petitioner/Defendant did not come forward to discharge th6 amount due under the Preliminary Decree. Accordingly, the Respondent/Plaintiff filed E.P.No.130 of 2022. On 17.04.2023. The sale was held and the auction was confirmed in favour of the Respondent/Plaintiff and he was declared as highest bidder. The bid amounts due were paid within the time specified. 3. The Petitioner/Defendant filed an application under Order 21 4. Rule 89 CPC on 01.08.2023, which was numbered as E.A.No.265 of 2023 seeking to deposit the decretal amount. The said application 2 was dismissed by the trial Court on 21.08.2023 on contest and on merits by holding that the application was filed beyond the period of 60 days from the date of auction as prescribed under Article 127 of the Limitation Act. Consequently, the sale was confirmed in favour of the Respondent/Plaintiff on 21.8.2023 and the Sale Certificate also issued in favour of the Respondent/Plaintiff on 21.8.2023. was After filing of E.A.No.265 of 2023, the Petitioner/Defendant had filed another E.A. on 04.08.2023 vide C.F.No.4044 of 2023 under Order 34 Rules 1‘ & 5 CPC requesting the Court to permit the Petitioner to pay the decretal amount along with 5% additional amount on purchase amount in favour of the Respondent/Plaintiff apart from costs. This application was returned on 04.08.2022 with an objection as to how the application is maintainable for sending the E.P amount to the Court as the Petitioner/Defendant filed another E.A.No.265 of 2023 under Order 21 Rule 89 CPC. 5. 6. The Petitioner did not re-present the returned E.A and proceeded to contest E.A.No.265 of 2023 as narrated above. The returned E.A was re-presented after dismissal of E.A.No.265 of 2023 stating that there is no bar for filing the petition under Order 34 Rules 1 & 5 CPC. The said application was again returned on 23.08.2023 on the ground as the sale was confirmed and sale certificate was 3 issued to the auction purchaser. Questioning the return of the E.A, the Petitioner filed C.R.P.No.2456 of 2023 before this Court and the same was allowed on 05.10.2023 directing the trial court to register the EA and hear the Petitioner and Respondent and pass orders thereon. Pursuant to the orders of this Court, the returned E.A was re- 7. presented on 27.11.2023. The trial Court thereafter dismissed the E.A on the ground that the Sale Certificate was issued in favour of the auction purchaser/Respondent. Hence, the present Revision is filed. Heard M/s. Nimmagadda Revathi, learned counsel for the Petitioner and Sri M.R.S. Srinivas, learned counsel for the 8. Respondent. 9. Contention^: The counsel for the Petitioner contended that as per Order 34 Rule 5 CPC, the Petitioner/Defendant has right of redemption before confirmation of the sale in pursuance of the Final Decree. As the application is filed into the Court seeking for payment of the amounts on 04.08.2023, the trial Court should have permitted the Petitioner/Defendant to pay the decretal amount along with 5% of auction purchase amount and the trial Court erred in not doing so. It was also contended that the limitation of 60 days prescribed 10. under Article 127 of the Limitation Act is not applicable to application 4 under Order 34 Rule 5 CPC as the same is a special procedure and even if the application under Order 21 Rule 89 CPC is dismissed the ground of limitation, the right to redeem subsists till the sale is confirmed. It is her contention that as the application was filed before the confirmation of auction and the purport of both the applications being to permit the Petitioner to make payment, the trial Court should not have rejected the same. on In response, the learned counsel for the Respondent contended that the Petitioner having filed the application and having invited an order in E.A.No.265 of 2023 after the contest, cannot turn around and rely on the application filed under Order 34 Rule 5 CPC on 04.08.2023. It was contended that the Petitioner did not choose to 11. re-submit the returned E.A application and the same was re-submitted after dismissal of E.A.No.265 of 2023. The further contention was that by the date of re-submitting the present E.A, the sale was confirmed and therefore no fault could be pointed out in the impugnedorder. 12. Doubt: After hearing the respective counsel, the case was reserved for orders on 14.11.2024. Thereafter, this Court entertained a doubt as to how it can be said that Article 127 of the Limitation Act, 1963 is not applicable to application under Order 34 Rule 5 CPC as that would be leading to inconsistency in the periods of limitation / 5 for application for setting aside the sale under Order 21 Rule 89/90 CPC vis-a-vis sale under Order 34 Rule 5 CPC. The further doubt this t Court entertained was as to what “confirmation of sale” occurring in Order 34 Rule 5 CPC would mean. The case was again posted for further hearing. The respective counsel sportingly made their submissions again on the specific doubts entertained by the Court. The counsel for the Petitioner submitted that applicability of the Limitation Act was specifically omitted in Order 34 Rule 5 CPC and application for payment can be filed before the occurrence of an event i.e confirmation of the sale unlike limitation period prescribed under Order t 21 89/90 CPC. The counsel for the Petitioner relied upon the Judgment of this Court in S.Subba Rao v. B.Suryaprakash Rao and others'' to substantiate her plea that the Limitation Act has no applicability to Order 34 Rule 5 CPC. It was further contended that confirmation of the sale is required to be passed by the Court and only then the sale would be confirmed. 13. Further Contentions: The counsel for the Respondent contended that confirmation of the sale is a ministerial act and once the amounts are paid within the 14. M988 (2) ALT 417 / / 6 time specified, the sale is deemed to be confirmed, contended that confirmation would be application is filed opposing confirmation of sale. It was further required only when an 15. The learned counsel for the Petitioner also relied decisions in Kharaiti Lai v. Raminder Kaur and others^, Philomina Jose V. Federal Bank Ltd., and others^ and M.Srividya Chowdary and another v. M.Sreenivasulu and others^. on the 16. On the other hand, the learned counsel for the Respondent relied on decisions in Hukumchand v. Bansilal and Others^, Allokam Peddabbayya and Another v. Allahabad Bank and Others^ and Jallipalli Srujana Devi v. Kandula Naga Rani and Others^. 17. Issues: Having heard the respective counsel, the point that fell for consideration in this Revision is as follows:- a) Whether the time limit for seeking to set aside the sale as provided 'll of Limitation Act is applicable to an application under Order 34 Rule 5(1)CPC? b) Whether the term “confirmation of sale" is required in the absence of any application by J. Dr/third party? ^ 2000 (2) ALD 86 (SC) '2006 (2) see 608 . 2016 (2) ALD 751 'AIR 1968 SC 86 '(2017) 8 see 272 ^ (2020) 3 ALD 326 ^—1 7 18. Reasoning: As both issues are interdependent, they are answered simultaneously. It is interesting to note that the Transfer of Property Act, 1882 had initially provided a mechanism for recovery of amounts due under mortgage. The Courts under Section 89 thereof were empowered to order for sale of property if the amounts were not paid in specified time and the right of the judgement debtor to redeem the property stood extinguished on the date of order of sale by the Court. This appears to be akin to Section 13(8) of the Securitisation Act, 2002 as amended in 2016. There were conflicting views of various Courts regarding procedure under the Transfer of Property, # 1882 and these conflicts were resolved legislatively by omitting the provisions of mortgage suits in the Act. The Sections 74,75,85 to 90 and 99 of the Transfer of Property Act, 1882 were omitted. 19. Coming to the present day. The Order 34 Rule 5(1) CPC reads as under: ‘5. Final decree in suit for sale. (1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a ifnal decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass final or, if such decree has passed, an order- (a)... 8 (b)... (C) The Petitioner/Defendant intending to make payment is entitled to do so before confirmation of the sale. The rustic understanding of the term “sale” is a transfer of ownership in exchange for a price paid. The statutory understanding of the term “sale” is no different as apparent on a reading of Section 54 of the Transfer of Property Act. The “sale” is defined as a transfer of ownership in exchange for a price paid, promised or part-paid or part-promised. 20. The time limit for payment of bid amount under Court auction is 15 days from the date of auction as provided in Order 21 Rule 85 CPC. Once an auction purchaser pays the amounts within the time specified, the sale is concluded. As the sale is through an involuntary process by Court, the legislature thought it appropriate to provide an extended time of 60 days under Article 127 of the Limitation Act to enable the judgement debtor to make good the decretal amount and to seek to set aside the sale. The Article 127 of the Limitation Act is applicable to all Court sales and there is no distinction between a sale under mortgage suit or a non-mortgage suit. The Article 127 of the Limitation Act is extracted below; 21. / / 9 Time from which period beings to period begins to Period of limitation Description of application run 127. To set aside a sale in sale in execution of a decree, including any such application by a judgment- debtor Sixty The date of the sale days 22. The emphasised portion of Article 127 “including any such application by a Judgement debtor” in the opinion of this Court includes an application under order 34 Rule 5 CPC. 23. The mischief that would be caused by holding that the limitation period does not apply to an application under Order 34 Rule 5 CPC as the Rule provides for an application to set aside the sale before confirmation of sale” is that the Court can keep deferring confirmation of sale peremptorily or till such time the judgment debtor is ready to deposit decretal amount. The further mischief is that there would be no consistency in the time period for filing an application to set aside the sale as one Court may confirm sale immediately and close the right to set aside the sale, » while another Court may not, as stated above. The consistency in law being a fundamental commandment, an interpretation enabling 24. / 10 mischief and making a mockery of auction sale should always be avoided. 25. The next question that falls for consideration is, the meaning of the term confirmdtion of sole” and whether any specific order of confirmation is required in the absence of any application within the time prescribed for payment under Order 21 Rule 85 CPC or the extended time of 60 days under Article 127 of Limitation Act, or is it to be deemed. 26. To answer this, it would be appropriate to refer to Order 21 Rule « 92 CPC. This provision specifies as to when the sale would become absolute. The Order 21 Rule 92 (1) CPC is extracted below: ‘92. Sale when to become absolute or be set aside. (1) Where no application is made under rule 89, rule 90 or rule 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: Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. ’ 27. The above provision, in the opinion of this Court, should not be read continuously and the term "where no application is made under Rules 89, 90 or 91 of CPC” should be disjuncted from the term "where CSC.# 11 such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale become absolute”. This is so, in view of “or” occurring in between the sentences in the provision. In the opinion of this Court, the question of confirmation of the sale is required only when an application is made by the Judgement Debtor/third party within the time specified and only when the same is disallowed. In the absence of any application by any party, the Court may pass an order of confirmation of sale and in the event of failure of the Court to pass an order of confirmation, the confirmation should be deemed. To reiterate, the sale will be deemed to be confirmed if there is no application, provided the payment by the auction purchaser is made by the auction purchaser within the time limit. The sale will not be deemed to be confirmed when an application is filed by a third party, be it under Order 21 Rule 89 or under Order 21 Rule 90 CPC or under any other provision questioning the sale. The reason for deferring the deemed confirmation of sale is to keep the application under Order 21 Rule 89/90 CPC relevant for adjudication. It was only in that context, the requirement of order of confirmation is required. 28. Juxtaposing the above understanding of Order 21 Rule 92 (1) CPC to Order 34 Rule 5 CPC, the scenario is no different. The 29. / 12 language in Order 34 Rule 5 CPC as extracted above also contemplates confirmation of the sale. The term confirmation of the sale specified in Order 34 Rule 5 CPC is referable to the procedure for confirmation specified in Order 21 Rule 92 CPC only. The confirmation even under Order 34 Rule 5 CPC is required only when there is a challenge to the sale process within the limitation prescribed. 30. A combined reading of Order 34 Rule 5 read with Order 21 Rule 92 CPC and Article 127 of the Limitation Act, is that the challenge to the sale should be within outer limit of 60 days and in the absence of any challenge to the sale, the Court may pass orddr of confirmation of the sale but on failure, the sale is deemed to be confirmed subject to payment of sale amounts in the time period specified in Order 21 Rule 85 CPC. 31. In this context, it would be appropriate to refer to the Judgment of Hon’ble Supreme Court in Hukumchand’s case (5 supra). In the said case, an application was filed for execution before the civil Court for executing an award passed by the Registrar under the Societies Act. The auction was conducted and amounts were paid. Then an application was filed by the Judgement debtor, under Order 21 Rule 90 CPC and subsequently offered to make payment of amount due. ■■ 13 As the amount could not be paid within the time granted by the civil Court on consent of all the parties, an application was filed for extension of time, the said application was rejected on the ground that Court does not have power to extend time. In that context, the Hon’ble Supreme Court upheld the order of the civil Court refusing extension of time. The relevant observations of the Hon’ble Supreme Court at paragraphs 2 and 7 are referred below; 2.Normally the sale would have been confirmed after 30 days, if no application had been made under Order 21 Rule 90 of the Code of Civil Procedure, for Order 21 Rule 92 inter alia provides that “where no appiication is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disailowed, the court shaii make an order confirming the sale and thereupon the sale shall become absolute.... “7 Though Order 34 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, that in our opinion does not mean 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 34 Ruie 5(1) like that contained in Order 34 Rule 4(2) to extend time for payment after the final decree is passed in a mortgage suit. As we read Order 34 Rule 5 it oniy 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 34 Rule 5(1) to grant extension of time and postpone confirmation of sale therefore. 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 21 Rule 92(1). That if tr 14 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 late after date and postponing confirmation of sale merely to accommodate a judgment-debtor. If that were so, the court may go bn postponing confirmation of sale for years in order to accommodate a Judgment-debtor. What Order 21 Rule 92 contemplates is that where conditions thereunder are satisfied an order for confirmation must follow. Further we have already indicated that Order 34 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 34 Rule 5(1) in his favour has to be passed.” 32. The judgment of Hon’ble Supreme Court ‘in Kharaiti Lai (2 supra) cited by the counsel for petitioner was a suit for foreclosure to recover mortgage. money and the same was decreed and a preliminary decree was passed on 23.01.1976. As the amount not paid, an application for final decree was filed and the property was auctioned on 25.08.1976. The auction sale was challenged under Order 21 Rule 90 CPC., and the same was rejected on 28.11.1977 and the sale was confirmed on 29.11.1977. Two appeals were filed thereon and during the pendency of the Appeals, the Appellant at that stage paid the amount due under the decree and in that view, the 4 appeals were allowed and the sale was set aside. This judgment and was / 15 ) decree was set aside in a Letter Patent Appeal by a Division Bench. Hence, the appeals were filed before the Hon’ble Supreme Court. It was in that context, the Hon’ble Supreme Court held that the confirmation of the sale and issuance of Sale Certificate shall be in a nebulous state as the appeals rejecting the objections regarding sale were pending. It was also held that the Judgment Debtor can make payment by invoking provisions under Order 34 Rule 5 even during pendency of appeal. Similar is the view taken in Philomina Jose’s case (3 supra). 33. The facts in this case are different. The distinction in this case is that the sale was not under challenge within the time frame as held above and the applications were filed subsequent to the limitation prescribed under Article 127 of the Limitation Act. The factual scenario in the above judgments of the Hon’ble Supreme Court is different and therefore, they are not applicable to the facts of this case. 34. The other judgement cited by the counsel for the Petitioner i,e S.Subba Rao’^ case (1 supra) did not refer to the Judgment of Hon’ble Supreme Court in Hukumchand’s case (5 supra) nor Article 127 of the limitation Act. As regards the judgement in M.Srividya Chowdary’s case (4 supra), the Article 127 of limitation issue did not fall for consideration. 16 35. i As regards the case law cited by the Respondents i.e Allokam Peddabbayya’s case (6 supra) and Jallipalli Srujana Devi’ supra) are not relevant to the facts of the s case (7 case as they are with regard non-applicability of Order were paid by the Petitioner along with the application and only offer to payment was made. to the right of redemption of mortgage and 34 Rule 5 CPC as no amounts 36. The Allokam Peddabbayya’s case (6 supra) was where the mortgaged property was sold in auction by the Bank pursuant to a civil Court decree. The mortgaged property was said to have been purchased by a third party prior to the decree a case and auction and this third party filed suit tor permanent injunction. In that context, it was held that subsequent purchasers' right of redemption available. This case, factually has no relevance to the present The next case i.e Jallipalli Srujana Devi’s case (7 supra) also has was not case. no relevance as the payment into Court by the Petitioner can be made only when Court permits payments on the application filed by the Petitioner. In this case, the application to make payment was rejected and therefore the issue of non-payment would not arise. 37. In that view, the conduct of auction on 17.04.2023 and confirmation of sale in favour of the Respondent on 21.8.2023 and the 17 Sale certificate issued do not suffer from any illegality and interference by this court is not warranted. 38. Result: The Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed. . Sd/- U SRIDEVI ASSISTANT REGISTRAR \ //TRUE COPY// SECTION OFFICER One Fair Copy to the HON’BLE SRI JUSTICE NYAPATHY VIJAY (For his Lordship’s kind perusal) To, 1. The Principal Civil Judge (Junior Division), Tenali, Guntur District. 2. One CC to Smt. Nimmagadda Revathi, Advocate [OPUC] 3. One CC to Sri M R S Srinivas, Advocate [OPUC] 4. Nine (09) L.R. Copies. 5. The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi. 6. The Secretary, Andhra Pradesh High Court Advocates’ Association Library, High Court Buildings, Amaravarthi. 7. Three CD Copies BSV sree / HIGH COURT DATED:31/01/2025 ORDER CRP.No.3392 of 2023 5 19 FEB 2025 % ^ . Current Section «o/. DISMISSING THE C.R.P. WITHOUT COSTS