# lf ' HUKAMCHAND v. BANSILAL & ORS

- **Citation:** [1967] 3 S.C.R. 695
- **Court:** Supreme Court of India
- **Decided:** 1967-04-19
- **Case number:** Civil Appeals No. 1005 of 1964
- **Bench:** K. N. Wanchoo, V. Bhargava, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lf-hukamchand-v-bansilal-ors-4011
- **Pages:** 8

## Headnote

Civil Procedure Code, 1908, 0. XXX/, rr. 90. 92, 0. XXXIV, r. 5Judgment.<febtor making application
under 0. XVI r. 90 after decree
passed-Application withdrawn and til1U! extended with consent of par-
'f/es-Whether court /ias power to grant further extension or must conflt<m IMile under o. XX/, r, 92.
The respondents were members of a cooperative housing society and
had created a mortgage on their property in favour of the society. A'
an amount due under the mortgage was not paid, the matter was referred
to the Registrar of Cooperative Societies and he made an order on May
!, 1957 directing the respondent to pay the amount due from August !.
1953 till the debt was discharged. He further directed that if the amount
was not paid, the property could be sold in satisfaction of the amount.
The amount was not paid as d;rected and the property was therefore sold
on April 7, 1958 to the appellant. As an application was made by the
respondents on May 3, 1958 under 0. XXI, r. 90 the sale could not be
confirmed under 0. XXI, r. 92 until this application was disposed of.
The proceedings on the application
continued up to October 7, 1958
when an order was passed with the consent of the parties whereby the
respondents were granted time till November 21, 1958 to deposit the
amount due and the application under 0. XXI r. 90 was dismissed as
withdrawn.
When the matter came up before
the executing
court
on November 22, the court noted that no amount had been deposited
and although an application was made on behalf of the respondents
for a further extension of time, the executing court held that as the
society decree-holder and the auction purchaser were not willing to extend time, the court could not extend time which had been given under
an agreement of the· parties by way of compromis-o.
The court therefore confirmed the sale under 0. XXI r. 92.
Mter appeals to the District Judge and a single bench of the High
Court, a Division μench. in a Le!te~ Patent Appeal, held that 0. XXXIV
~· 5 would apply m a cas~ ~f this kind and ·that even if it did not apply.
it was a fundame?tal pnnciple that before a mortgagor could be prc-
".""ted from making the payment and redeeming the property,
his
nghts must. have come to an end and they would come to an end only
when his title was lost by confirmation of sale. The court allowed the
\'1)peal holding that \he applicatioi:i for extension of time was wrongly re1ected by th~ executing court as it had the pe>wer to grant an extension.
It furt!'er direc~ that as some amount had been paid by he respondents, tf on makm~ up the accounts it was found that any additional
arno11!1!--Was due the court would give reasonable time for this to be
deposited.
On appeal to this Court,
HELD : The order of the executing court refusing extension of time
and confirmin~ the sale in favour of the apJ>~llant under O. XXI r. 92
was correct. [702B!
696
SUPREME COURT REPORTS
[1967] 3 S.C.R.
It was not open to the executing court to extend time without the
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.
[701H]
Though 0. XXXIV r. 5 (I) recognises the
right of the judgment•
dobtor to pay the decretal amount in an execution relating to a mortgage decre~ for sale at any time before the corifirmation of sale, the rule
does not give any power to the court tp grant time to deposit the money
after the .final decree has been passed.
It is not open to the court to
go on fixmg date after date and postponing confirmation of 8ale merely
to accommodate a judgment-debtor.
A
harmonious
construction
of
O. XXXIV r. 5 and O. XX! r. 92 makes it clear that if the provisions of
0. XX! r. 92(1) apply the sale must be confirmed unless b~fore the confirmation the mortgagor judgment-debtor has
deposited the amount as
permitted by 0. XXXIV r. 5.
[699D-E. H; 700E]
Janak Rai v. Gurdial Singh [1967] 2 S.C.R. 77. referred to

## Text

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HUKAMCHAND
v.
BANSILAL & ORS.
April 19, 1967
(K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.]
Civil Procedure Code, 1908, 0. XXX/, rr. 90. 92, 0. XXXIV, r. 5Judgment.<febtor making application
under 0. XVI r. 90 after decree
passed-Application withdrawn and til1U! extended with consent of par-
'f/es-Whether court /ias power to grant further extension or must conflt<m IMile under o. XX/, r, 92.
The respondents were members of a cooperative housing society and
had created a mortgage on their property in favour of the society. A'
an amount due under the mortgage was not paid, the matter was referred
to the Registrar of Cooperative Societies and he made an order on May
!, 1957 directing the respondent to pay the amount due from August !.
1953 till the debt was discharged. He further directed that if the amount
was not paid, the property could be sold in satisfaction of the amount.
The amount was not paid as d;rected and the property was therefore sold
on April 7, 1958 to the appellant. As an application was made by the
respondents on May 3, 1958 under 0. XXI, r. 90 the sale could not be
confirmed under 0. XXI, r. 92 until this application was disposed of.
The proceedings on the application
continued up to October 7, 1958
when an order was passed with the consent of the parties whereby the
respondents were granted time till November 21, 1958 to deposit the
amount due and the application under 0. XXI r. 90 was dismissed as
withdrawn.
When the matter came up before
the executing
court
on November 22, the court noted that no amount had been deposited
and although an application was made on behalf of the respondents
for a further extension of time, the executing court held that as the
society decree-holder and the auction purchaser were not willing to extend time, the court could not extend time which had been given under
an agreement of the· parties by way of compromis-o.
The court therefore confirmed the sale under 0. XXI r. 92.
Mter appeals to the District Judge and a single bench of the High
Court, a Division μench. in a Le!te~ Patent Appeal, held that 0. XXXIV
~· 5 would apply m a cas~ ~f this kind and ·that even if it did not apply.
it was a fundame?tal pnnciple that before a mortgagor could be prc-
".""ted from making the payment and redeeming the property,
his
nghts must. have come to an end and they would come to an end only
when his title was lost by confirmation of sale. The court allowed the
\'1)peal holding that \he applicatioi:i for extension of time was wrongly re1ected by th~ executing court as it had the pe>wer to grant an extension.
It furt!'er direc~ that as some amount had been paid by he respondents, tf on makm~ up the accounts it was found that any additional
arno11!1!--Was due the court would give reasonable time for this to be
deposited.
On appeal to this Court,
HELD : The order of the executing court refusing extension of time
and confirmin~ the sale in favour of the apJ>~llant under O. XXI r. 92
was correct. [702B!
696
SUPREME COURT REPORTS
[1967] 3 S.C.R.
It was not open to the executing court to extend time without the
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.
[701H]
Though 0. XXXIV r. 5 (I) recognises the
right of the judgment•
dobtor to pay the decretal amount in an execution relating to a mortgage decre~ for sale at any time before the corifirmation of sale, the rule
does not give any power to the court tp grant time to deposit the money
after the .final decree has been passed.
It is not open to the court to
go on fixmg date after date and postponing confirmation of 8ale merely
to accommodate a judgment-debtor.
A
harmonious
construction
of
O. XXXIV r. 5 and O. XX! r. 92 makes it clear that if the provisions of
0. XX! r. 92(1) apply the sale must be confirmed unless b~fore the confirmation the mortgagor judgment-debtor has
deposited the amount as
permitted by 0. XXXIV r. 5.
[699D-E. H; 700E]
Janak Rai v. Gurdial Singh [1967] 2 S.C.R. 77. referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals No. 1005 of
1964.
.
Appeal by special leave from the judgment and order dated
July 12, 1962 of the Bombay High Court, Nagpur Bench in appeal
No. 16 of 1960 under the Letters Patent.
A. S. Bobde, G. L. Sanghi, and 0. C. Mathur, for the
appellant.
N. C. Chatterjee and M. S. Gupte, for respondents Nos. 1.
and 2.
W. S. Barlingay and A. G. Ratnaparkhi, for respondent No. 4.
The Judgment of the Court was delivered by
Wanchoo, C.J. This is an appeal by special leave from the
judgment of the Bombay High Court and arises in the following
circumstances. The respondents were members of a Co-operative
Housing Society and had created a mortgage on their property in
favour of the society. As the amount due under the mortgage was
not paid, the matter was referred to the Registrar, Co-operative
Societies, and he made an order dated May 1, 1957 that the respondents should pay a sum of Rs. 9,000 and odd and interest at
Rs. 12 per cent per annum from August 1, 1953 till satisfaction
of the debt due to the Society. The Registrar further directed
that if the amount was not paid in cash to the society, the property
mentioned in his order would be sold in satisfaction of the amount.
The order also provided that in case the amount due was not
realised from the sale of the property, the society would haYe the
right to proceed against the respondents · for the balance. The
amount was not paid as directed in the order. Consequent!y an
application was made to the civil court as provided by law for recovery of the amount under the order of the Registrar which
amounted to a decree. In consequence the property on which
charge was created by the order of the Registrar was brought to·
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HUKAMCHAND v. BANSILAL (Wane/zoo, C.J.)
697
sale. The sale was held on April 7, 1958 and the appellant being
the highest bidder, the sale was concluded in his favour.
Normally the sale would have been confirmed after 30 days, if
no application had been made under 0. XXI r. 90 of the Code of
Civil Procedure, for 0. XXI r. 92 Inter alia provides that "where
no application is made under r. 89, r. 90 or r. 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".
As an application had been made on May 3, 1958 under 0. XXI
r. 90, the sale could not be confirmed till that a.pplication was disposed of. Proceedings under 0. XXI rule 90 seem to have gone
on upto October 7, 1958. On that day it appears that one of the
respondents gave evidence as a wrtness.
Thereafter it was the
turn of the Society decree-holder to give evidence. Rut before the
evidence of the society began, it appears that respondents requested
for one month's time to deposit the decretal amount along with
the auction-purchaser's commission.
They also appear to have
stated that in that event they were prepared to withdraw their
application under 0. XXI r. 90. The society as well as the auction-purchaser had no objection to time being allowed. The
executing court therefore granted time to the respondents till
November 21, 1958 to deposit the entire decretal amount along
with the auction-purchaser's commission. After time was thus
allowed with consent of the parties, the application under 0. XXI
r. 90 was dismissed as withdrawn with no order as to costs.
On November 20, 1958, an application was made by the respondents in which they referred to what had been ordered on
October 7, 1958. They further stated that November 21 1958
was a holiday and it was not possible to deposit the amo~nt on
that day tho.ugh they were prepared to do so. They consequently
prayed for ume for one day so that the deposit 111i,ght be made on
November 22, 1958. No order was passed on this application on
~ovember 20, 1958 though it bears an endorsement of the executmg court to the effect that it had been filed on November 20,
1958. November 21, 1958 being a holiday it appears that the
matter came before the executing court on November 22. On that
day the court noted that no amount had been deposited. The
~rder-sheet also shows that counsel for the respondents -,,rayed for
tune. for a fortnight.
The society decree-holder· as well as the
~uct1on-purchaser .C appellant) opposed the prayer for extension of
tune. The ~xecutmg court held that as the society decree-holder
and the a.uction-pu~chaser .were not willing to extend time the court
could not ~xtend tm1e which had. been given under an agreement
of the parties by way of compromise. The court tl1erefore rejected
the pra~er for extension of time and thereafter confirmed tlle sale
as reqmred by 0. XXI r. 92 as the application under 0. XXI
r. 90 had already been dismissed on October 7, 1958.
G98
SUPREME COURT REPORTS
[1967) 3 S.C.R.
The respondents went in appeal to the District Judge. He held
that the court had always the power whether under s. 148 of the
Code of Civil Procedure or otherwise, to postpone passing of
orders confirming sale of immovable properties. He went on to
hold that the executing court erred in holding that it had no power
to grant further extension of time. The appeal was therefore
allowed, the order of the executing court set aside and the case
remitted to the executing court for deciding the application for.
extension of time on merits. It may be mentioned that though the
District Judge said in the order that the applicati0n presented on
November 22, 1958 for granting further time would be disposed
of after hearing parties and considering the merits of the case,
there was in fact no written application on November 22, 1958
and there was only an oral prayer. That however makes no difference to the main question before us._
There was then a second appeal by the appellant to the High
Court. A question was raised in the High Court whether
0. XXXIV r. 5 applied to the present case.
The learned Single
Judge seems to have held that 0. XXXIV r. 5 did not apply. He
further held that in view of the 1provisions of o. xxr r. 92, the
-sale was rightly confirmed and s. 148 of the Code of Civil Procedure could not under the circumstances be invoked. The appeal
therefore was allowed and the order of the executing court restored.
Then there was a Letters Patent Appeal by the respondents.
The Division Bench appears to have held that p, XXXIV r. 5
would apply in a case of this kind. It also went on to say that
even if 0. XXXIV r. 5 did not apply, it was a fundamental pfindple that before a mortgagor could be prevented trom making the
payment and redeeming the property, his rights must have come
to an end and they would come to an end oniy when his title was
Jost by confinnation of sale. It went on to hold that if the application for extension of time was wrongly rejected if the mortgagor
had the right and the court had the power to grant adjournment,
it would be open in appeal to consider whether the executing court
refused the adjournment properly or not. If in appeal the court
came 'to the conclusion that the order of the executing court refusing extension of time was wrong, the confirmation which followed on such wrong order would fall and the mortgagor judgmentdebtor would be entitled to deposit the amount. It appears that
as the respondents had deposited some money after the order of
1he District Judge in appeal, the Letters Patent Bench allowed the
appeal, set aside the order of the learned Single Judge and restored
the order of the District Judge and further set aside the order of
,confirmation made by the executing court on Novenlber 22, 1958.
It also ordered that the amount lying in deposit should be paid to
the decree-holder mortgagee and the auction-purchaser.
It may
be added that this deposit was not made before the confirmation
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HUKAMCHAND v. BANS!LAL (Wanchoo, C.J.)
699
of sale on November 22 1958 but long afterwards in 1959. It
further directed that if dn making up the accounts, it was found
that any additional amount had to be deposited, the court would
give reasonable time to the judgment-debtors, namely, the present
respondents before us. The High Court having refused leave to
appeal,. the appellant obtained special leave from this Court, and
that is how the matter has come before us.
The principal question that arises for decision in this case is
whether the executing court was right in the view that it could not
extend time which had been given by consent of parties on October
7, 1958. If that view is correct, there would be no difficulty in
holding, in view of O. XXI r. 92, that the order confirming sale
was proper. We shall proceed on that assumption that 0. XXXIV
r. S applies in the present case and that the order of the Registrar
which was under execution was a final decree in a mortgage suit.
0. XXXIV r. S ( 1) gives an opportunity
to the judgmentdebtor in a mortgage decree for sale to deposit the amount due
under the mortgage decree at any time before the confinnation 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-dt>btor in terms of
0. XXXIV r. 5 (1). Though 0. XXXIV r. 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-deboor. 'l'here is no provision in 0. XXXIV r. 5 (1) like that contained in O. XXXIV
r. 4 (2) to extend time for payment after the final decree is passed
in a mortgage suit. As we read 0. 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 con~uence of a sale
having taken place, provided the deposit is made before the confirmation of sa~e.
Bu~ there is oo power in O. XXXIV r. 5 (1)
to .grant extension of time and postpone confirmation of sale therefor. The observation of the District Judge tnat the court has
:iJways , the power to postpone passing orders confirming sale of
unmovable property is in our view incorrect, in the face of the
provisions contained in. 0. XXI ~· 9~ ( 1). That provision makes
1t absolutely clear that 1f no apphcation is made under r. 89, r. 9()'
or r. 91 or where such application is made and disallowed
the
court has to make an order confirming the sale and thereup~n 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 ac·
comm.odate a.judgment-debtor. If that were so, the court may go
on pos~ning confirmation of sale for years in order to accommodate a 1udizment-debtor. What O. XXI r. 92 contemplates is that
where conditions thereunder are satisfied an order for· confirmatioll'
700
SUPREME COURT REPORTS
[1967] 3 S.C.R.
must follow. Further we have already indicated that 0. XXXIV
r. 5 does not give any power to court to !);rant time to deposit the
ni.oney after the final decree has 'been passed. All that it permits
is that a judgment-debtor ca·n deposit the amount even after the
final decree is passed et any time before the confirmation of sale
and if he does so, an order in terms of 0. XXXIV r. 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 0. XXXIV r. 5 which pro-
. vides that the mortgagor judgment-debtoJ" 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 0. :x;XXIV r. 5 to extend time
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and all that it does is to permit the mortgagor judgment"debtor to
deposit the amount before confirmation of sale. It does not give . D
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 0. XXXIV r. 5 and 0. XX!
r. 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 tirile before confirmation. of sale,
there is no question of his being granted time under 0. xxxrv
r. 5 and if the provisions of 0. XXI r. 92 ( 1) apply the sale must
be confirmed unless before the confirmation the iμortgagor judg·
ment-debtor has deposited the amount as permitte4 by O. XXXIV
r. 5. We may in this connection refer to the decision of this Court
in Janak Raj v. Gurdial Singh(1 ), where it has been laid down that
once tlie conditions of 0. XXI r. 92 (1) are complied with, the
executing court must confirm the sale.
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 r. 91 of 0. 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 tho sale under
'O. XXXIV r. S ( 1) so lon11: 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·
(1) [1967} 2 S.C.R. 77.
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HUKAMCHAND v. BANSILAL (Wanchoo, C.J.)
701
o.·xxxrv r. 5 (1) in their favour. In this case an application
under 0. XXI r. 90 had 'been made and therefore the sale could
not be confirmed immediately after 30 Jays which would be the
normal course; the confirmation had to await the disposal of the
application under O. xxr·r. 90. That application was disposed
of on October 7, 1958 and was dismissed. It is obvious from the
order-sheet of October 7, 1958 that an oral compromise was
arrived at between the parties in courc 011 that day. By that compromise time was granted to the.1espondents to deposit the entire
amount due to the decree-holder and the auction-purchaser by
November 21, 1958. Obyiously the basis of the qompromise was
that the respondents withdrew their application under 0. XXI
r. 90 while the decree-holder society and the auction-purchaser ap·
pellant agreed that time might be given to deposit the amount up
to November 21, 1958. If this agreement had not been arrived at
and if the application under 0. XXI r. 90 bad been dismissed (for
example, on merits) on October 7, 1958, the court was bound
under 0. XXI r. 92(1) to confirm the sale at once. But because
of the compromise between the parties by which the respondents
were given time up to November 21, 1958 the court rightly postponed the question of confirmation of sa1e till that date by consent
of parties. But the fact remains. that the application under 0. XXI
r. 90 had been dismissed <in October 7, 1958 and thereafter the
court was bound to confirm the sale but for the compromise bet·
ween the parties giving time upto November 21, 1958.
Now let us see what happened about November 21, 1958. On
November 20, 1958, an application wns made by the respondents
praying that they might be given one day more as November 21,
1958 was a 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
0. XXXIV r. 5 it was open to the respondents to deposit the entire
amount on November 22, 1958 hefore the sale was confirmed but
no such deposit was made on November 22, 1958. On the ~ther
hand, cou.nsel fo~ the respondents prayed tu the executing court
for extension of tune by 14 days. The executina court refused
that holding tha.t time upto November 21, 1958 had been granted
by co~sent and 1t was no longer open to it to extend that time. The
~~cutm~ court has not referred to o. xxr r. 92 in its order but
l! is ?b,~ous that the executing court held that it could not grant
time m the absence ?f an agreement between the parties because
0. XXI r. 92 requ1red that as the application under' O XXI
r., 90 had~
dis~issed, the sale must be confinned. We are' of the
view that m the circumstances it was not open to the executing
court to extend time without consent of parties for time between
Oct?ber 7, 1~58 to November 21, 1958 was granted by consent of
parties. Section 148 of the Code Civil Procedure would not apply
702
SUPREME COURT REPORTS
(1967] 3 s.c.R.
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 0. XXI r. 92, there being no question
of the application of 0. XXXIV r. 5, for the money had not .been
deposited on November 22, 1958 before the order of confirmation
was pass.ed. 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.
It is however urged that it does not appear that ihe time· was
granted on October 7, 1958 by consent of parties because the respondents had only asked for one month's time and the court gave
tiine 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 0. XXI r. 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.
~t seems to us that the whole thing took place in
the presence of the court and the order granting ~ime upto November 21, 1958 must in. the circumstances be read a~ a consent order.
It is borne out by the fact that on Novemj>er _22, 1958 the same
prmding 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 tiDJe was not granted
by consent of parties and therefore the court had power under
s. 148 to extend time which had aiready been granted.
We a!iow the appeal, set aside the order of the ·Letters Patent
Bench and of the District Judge and restore that' 9f the executing
court dated November 22, 1951!. It follows that the sale stood
confirmed in favour of the appellant on November 22, 1958. We
direct that the respondents (judgment-debtors) will pay the costs
of the appellant throughout. The· money deposited by the respondent' can be taken back by them.
R.K.P.S.
Appeal allowed.
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