The provisions of Order 34 Rule 5 CPC is available to a mortgagor in the case of a mortgage decree till the confirmation of sale - provisions of Order 34 Rule 5 CPC stand on a different footing and on a higher plane from the provisions of Order 21 Rule 89, 90 and 92 of the CPC - there can be no clog on redemption until the sale is finally concluded by orders of Court or by confirmation of sale or by sale becoming absolute as per Order 21 Rule 92 CPC

C.M.A.No.2701 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON: 25.11.2022

PRONOUNCED ON: 10.01.2023

CORAM

THE HON'BLE Ms.JUSTICE P.T.ASHA

C.M.A.No.2701 of 2013

and

C.M.P.No.13295 of 2017

K.B.Hemchand

...Appellant

Vs.

1. K.J.Shankar

2.M/s.Mahalakshmi Tea Growers,

Partnership Firm

Rep. by its partners K.J.Prabhu,

ISSU Buildings, Bed Fort,

Coonoor - 1, Nilgris District.

3.K.J.Prabhu

4.Rukmani

5.Dr.Mahalakshmi

1/39

https://www.mhc.tn.gov.in/judis

Therefore, from a reading of all the above judgments the following factors emerge:-

a) The provisions of Order 34 Rule 5 CPC is available to a mortgagor in the case of a mortgage decree till the confirmation of sale and once the provision is invoked and there is a due compliance of the deposit,

the Court is bound to set aside the sale/ put the mortgagor in possession/

direct the mortgagee to hand over the original title deeds to the mortgagor.

b) For invoking the remedy under Order 34 Rule 5 CPC it is not mandatory that it should be in the form of an application, the same could be in the form of an objections with deposit of the entire amount or by an oral representation however with due compliance of the provision of deposit.

c) The provisions of Order 34 Rue 5 CPC can be invoked when an appeal or revision is filed as well and would apply parallely alongwith an application filed under the provisions of Order 21 Rule 89 CPC.

d) The provisions of Order 34 Rule 5 CPC stand on a different footing and on a higher plane from the provisions of Order 21 Rule 89, 90 and 92 of the CPC.

e) The provisions of Order 21 Rule 89 CPC would apply to mortgage decrees where there is no challenge to the decree and amounts have not been deposited as contemplated under the provisions of Order 34 Rule 5 CPC.

f) This Right of the mortgagor is based on the provisions of Section 60 of the Transfer of Property Act. Since the general principle is that there can be no clog on redemption until the sale is finally concluded by orders of Court or by confirmation of sale or by sale becoming absolute as per Order 21 Rule 92 CPC.