ORDER
K.M. Natarajan, J.
1. This revision is directed against the order of dismissal passed in an application, EA. No. 313 of 1983 in E.P. No. 101 of 1977 in O.S. No. 537 of 1972 filed under Order 47, Rule 1 and Section 151, C.P.C.
2. The facts which are necessary for the disposal of this revision can be briefly stated as follows:
The first respondent obtained a preliminary decree for sale of the mortgaged properties on 17.10.1974 and a final decree on 9.7.1976. In pursuance of the same, E.P. No. 101 of 1977 was filed before the Sub Judge, Madurai. The first item of the properties was sold to the second respondent A.R. Nachiappan on 13.12.1982 for Rs. 35,000. In pursuance of the said sale, the second respondent deposited 1/4th of the sale amount, namely, Rs. 8,775 and the matter was posted for confirmation of sale on 12.2.1983. The balance of sale amount, was also deposited on 24.12.1982. A sum of Rs. 76,850.07 was deposited by the counsel for the fourth defendant on 31.1.1983 after filing lodgment schedule and obtaining chalan from court. 12.2.1983 and 13.2.1983 were holidays. Hence, it was called on 14.2.1983. On that day, on behalf of the fourth defendant, a petition was filed under Section 151, C.P.C. stating that the amount of Rs. 76,850.07 was already deposited under chalan No. 2144 on 31.1.1983 towards the decree amount, costs, poundage, sale commission, interest, etc. in full satisfaction of the entire decree and hence the entire decree was fully satisfied, that the sale has to be set aside and that the execution petition has to be closed. The court below rejected the said application without even numbering the same and confirmed the sale holding that the balance of the purchase money and sale certificate charges were deposited on 24.12.1982 by the auction purchaser, that though the counsel for the fourth defendant deposited the amount of Rs. 76,850.07, no petition to set aside the sale was filed within the time and that the deposit was made after 30 days after the date of sale. Hence, the sale was confirmed and the execution petition was dismissed. Aggrieved by the same, the revision-petitioners herein filed E.A. No. 313 of 1983 or review of the order dated 14.2:1983 contending that the executing court was in error in holding that the amount was not deposited within 30 days from the date of sale and that the said deposit was after the period of limitation while there is no limitation for deposit of the amount. It was submitted that only the petition to set aside the sale under Order 21, Rule 89, C.P.C. has to be filed within 60 days and within the time the amount has to be deposited as provided under Article 127 of the Limitation Act. Further, no separate petition to set aside sale is necessary, since such prayer is implied in the application for deposit of the amount which amount is payable to the decree-holder. The application has been filed to set aside the sale on 14.2.1983 but it has been rejected. It was submitted that the court has failed to note the errors and mistakes on the face of the records and if it considered it would have set aside the sale and as such they prayed for review of the order.
3. The said application was resisted by the respondents. In the objections, it was stated that the payment, made after 30 days but before 60 days, is barred by limitation. Further, they are not entitled to ask for setting aside the sale without a petition even though the deposit was made. In any event, the present application under Order 47 C.P.C. is not maintainable.
4. The court below upheld the objections of the respondents and dismissed the application. Hence this revision.
5. The learned Counsel for the revision petitioners, Mr. N.S. Nandakumar mainly submitted that the properties were brought to sale in pursuance of the decree obtained on a mortgage and the deposit made on 31.1.1983 before the confirmation of sale is a proper payment in full satisfaction of the decree amount and the sale has to be set aside on that ground alone. Further, in the very lodgment schedule filed by the revision-petitioners for deposit of the amount, it was prayed that the court may be pleased to accept that amount towards the sale and only there upon the chalan was issued for acceptance of the amount and in pursuance of the chalan, the amount was deposited and in the face of the same, no separate application is necessary. The learned Counsel also submitted that in view of Article 127 of the Limitation Act, the petition has to be filed within 30 days to set aside the sale and it is a proper compliance if the amount is deposited before the time and there is no period of limitation prescribed for deposit of the amount. It is further submitted by the learned Counsel that in view of the error apparent on the face of the record with regard to the legal principles and also other sufficient reasons, the court below ought to have reviewed the order. On the other hand, the learned Counsel for the respondents supported the order passed by the court below and contended that the application filed on 14.2.1983 is beyond the period of limitation and it is not a proper compliance. Further, no case has been made out for review. Lastly it was submitted that in case the court is inclined to allow the application, the auction purchaser should be compensated by directing the revision-petitioners to pay interest at 15 per cent per annum by way of compensation from the date of deposit till the date of order. Let us consider the contentions in seriatim.
6. As per Rule 5(2) of Order 34, C.P.C., it is clear that the defendant is entitled to make payment of the amount due from him as per the preliminary decree in the suit and if the mortgaged property or part thereof has been sold in pursuance of the decree passed, the court is entitled to pass an order, only if the defendant failed to deposit an additional amount of fiver per cent of the amount of the purchase money paid into court by the purchaser. In the instant case, admittedly, the revision-petitioners deposited not only the sale warrant amount but also 5% of the amount payable to the auction purchaser as well as the poundage and other amounts payable as per rules including the interest upto that date and costs, and it is not disputed. The sale took place on 13.12.1982. The amount was deposited on 31.1.1983 within the period of sixty days after filing the lodgment schedule praying for acceptance of the amount and getting the chalan from the executing court. As already narrated, though for confirmation of sale it was posted to 12.2.1983, since 12.2.1983 and 13.2.1983 happened to be holidays, it was adjourned to 14.2.1983. On that day, the executing court noted the payment made by the counsel for the fourth defendant towards the sale warrant amount as well as other amount payable for setting aside the sale; but confirmed the sale holding that even though the deposit was made, no application was filed to set aside the sale and further the deposit was made after 30 days. The executing court did not accept the case relied on by the learned Counsel for the revision-petitioners and reported in Behari Loll v. Gopal Krishna Pathak : AIR1972Pat347 wherein it has been held that the prayer by the judgment-debtor in his application that the chalan for deposit of balance of decretal amount may be passed involves the prayer for setting aside the sale, on the ground that it is a judgment of a single Judge of the said court. The Sub Judge relied on the decision of a Division Bench of the Patna High Court reported in Dhari Jana v. Gauranga Charan : AIR1940Pat87 wherein it has been held:
An application to set aside sale cannot be implied from the mere fact that decretal amount and compensation was deposited.
The Sub Judge relied on a decision of this court in Chakrapani Padhi v. Krushno Naiko : AIR1926Mad620 wherein it has been held;
A lodgement schedule is not an application of the nature contemplated by Order 21, Rule 82. There must be something more than a deposit.
In the instant case, the learned Counsel produced a copy of the petition filed under, Section 151, C.P.C. before the sale is confirmed bringing to the notice of the court that the deposit was made and praying the court to set aside the sale and close the execution petition. The court rejected the same without assigning any reason. The learned Counsel for the revision-petitioners drew the attention of this court to the decision reported in Maruti Shidalappa v. Shivappa Mallappa : AIR1967Bom39 wherein it was held:
Although, however, the terms of Order 21, Rule 89 require an application to be made for having the sale set aside, nothing is stated in that rule regarding the mode in which such an application should be made. It must follow that a judgment-debtor, who makes the requisite deposit in court and further makes a request to the court in any form that the auction sale be set aside, complies with the requirements of Order 21 Rule 89.
It was further held:
To file in court, a purshis containing an implicit prayer for setting aside the sale, instead of a formal application does not amount to a non-compliance with that provision.
Consequently, the purshis Ex.35 was treated as an application under Order 21, Rule 89, of the Civil Procedure Code and the auction sale was set aside.
In Nanjappa v. Sreeranga 58 L.W. 333 : I.L.R. 1946 Mad. 265, a Division Bench of this Court held that the deposit should be treated as a payment under Order 34, Rule 5, C.P.C. That was a case where the appellant was indebted to the respondent under a deed of mortgage, and he failed to pay what was due. Consequently the respondent instituted execution proceedings in the court of the District Munsif and the property was put up for sale and was purchased by the respondent. The appellant applied under Order 21, Rule 90, to have the sale set aside, but he did not proceed with that application. However, while making the application under Order 21, Rule 90, he paid into court the amount which he calculated was due to the respondent under the decree. It was contended on behalf of the appellant that the deposit should be treated as a payment under Order 34, Rule 5, of the Code. Both the District Munsif as well as the District judge held that Order 34, Rule 5 did not apply. The Division Bench of this court held that the deposit should be treated as a payment under Order 34, Rule 5, C.P.C. and allowed the appeal with costs. The learned Counsel for the respondent only distinguished that decision by contending that in that case the amount was deposited along with the application under Order 21, Rule 90, C.P.C. but in the instant case, no such application was filed. Do not find any merit in the said contention. The question that arose is whether the judgment-debtor is entitled to deposit the amount before confirmation of the sale and when the deposit was made the sale is to be set aside in the case the sale arose out of the mortgage decree and no regular application is contemplated. In Pachiayee v. Vallimuthu : AIR1925Mad639 it was held that an application oral or written made within 30 days is necessary for the purpose of Order 21, Rule 89, C.P.C. It is clear from the above decision that even an oral application is sufficient and it need not be in writing. In the instant case, it is brought to the notice of this Court that before confirmation the petition was filed bringing to the notice of the court about the deposit within the time and praying for setting aside the sale. As such, it cannot be said that there is no proper deposit made by the appellants for setting aside the sale in view of Order 34 Rule 5(2), C.P.C. and also Order 21, Rule 80, C.P.C. It is also worthwhile to quote the decision of this court reported in Ramalingam v. Rajagopalan : (1975)2MLJ494 . That decision was rendered by Natarajan, J. (as he then was). That was a case where the suit property was Under mortgage and a suit was filed and a preliminary decree and final decree were passed. The property was purchased by the second respondent at the court sale. The mortgagors filed applications in the executing court for setting aside the sale. The applications were dismissed and the sale was confirmed and the sale certificate was engrossed on stamp papers. The mortgagors filed an application to the High Court. before the appeal was heard, an application Under Order 34, Rule 5, and Section 151, C.P.C. was filed by the mortgagors for redemption of the mortgage. The second respondent-purchaser objected that the application was belated and in any event, such a petition would not lie after the sale had been confirmed by the lower court. It was held:
The appeal preferred by the judgment-debtors had the effect of rendering the sale and its confirmations fluidal and nebulous. The finality of the sale was rendered at large and as such, the petitioners would be entitled to exercise the right conferred on them under Order 34, Rule 5, CP.C.to redeem the mortgage.
Applying the ratio laid down in the said decision to the facts of this case, it can be safely held that the deposit made prior to the confirmation of the sale and within the period of limitation is a sufficient compliance under Order 34, Rule 5, as well as Order 21, Rule 29, C.P.C.
7. Next comes the question of limitation regarding the deposit of the sale amount. The court below held that the deposit, which was made after 30 days, though the application was filed within 60 days, is barred by limitation. In this connection, the learned Counsel drew the attention of this Court to the decision reported in Thangammal v. K. Dhanalakshmi : AIR1981Mad254 where it was held:
Where the deposit and the application for setting aside the sale under Order 21, Rule 89 was made within 60 days from the date of the sale as prescribed in Article 127 of the Limitation Act, the application could be said to be within time. Article 127 of the Limitation Act which is a special later law prescribes the period of 60 days for making an application under Order 21, Rule 89 prevails over Order 21, Rule 92(2) which is general earlier law which prescribes period of 30 days. The maxim generalia specialibus non-demgant, (general provisions do not derogate from special provisions is applicable and therefore it cannot be said that if the deposit had not been made within 30 days from the date of the sale as per Order 21, Rule 92(2) of the application for setting aside the sale under Order 21, Rule 89 the application cannot be maintained.
In Court Liquidator v. Bimalendu Das : AIR1985Cal382 it was held that the limitation for making application and making deposit is 60 days under Order 21, Rules 89 and 92 C.P.C. read with Article 127 of the Limitation Act as amended by amendment in 1976. It is clear from the above ratio that the deposit made in the instant case, which is within 60 days, is well within the time and not barred by limitation as held by the court below. In Sevugan Chettiar, M. of this Court, while considering the scope of deposit of money by judgment-debtor under Order 34, Rule 5, C.P.C. before confirmation of sale, held:
It is not correct to say that the actual deposit must precede the very filing of the application in every case. There must be a deposit and that deposit should be made before the confirmation of sale. In this case, the confirmation is yet to reach the finality. So long as there is no confirmation of sale in the eye of law and the 'matter is sub-judice in appeal, time is available for the judgment-debtor to make the deposit and the process of deposit could be worked out until the confirmation of the sale reaches the finality.
It is clear from the ratio laid down in the above decision that there is no time limit for deposit under Order 34, Rule 5, C.P.C. but it must be only before the confirmation of the sale. In the instant case, before the confirmation of the sale, the amount was admittedly deposited.
The above view was affirmed also in the decision relied on by the learned Counsel for the respondents reported in Subramania Asari v. Ramaswami Pillai : AIR1937Mad560 . That was also a case where a sale of a mortgage property was held and 30 days later the mortgagor put in an application purporting to be under Order 21, Rule 89 to set aside the sale, depositing the whole amount, plus 5% for the auction purchaser and costs. The court held that under Article 166 of the Limitation Act the application was not in time and dismissed it. Subsequently the petitioner filed a review petition stating that his application was not one under Order 21, Rule 89, but one under Order 44, Rule 5.
The District Munsif held that tinder 021, R:92, the Court, in circumstances like the present as well as in general where the application had bot been put in under Order 21, Rules 89 to 91, was found to order confirmation of sale, but the High Court held:
It was wrong to hold that as the court was bound to confirm a sale after 30 days the sale automatically became confirmed after 30 days. That might be valid if the wording of Order 21, Rule 92, did not make it clear that automatic confirmation did not take place. On the other hand, Order 21, Rule 92 and Section 65 of the Code contemplated the passing of an order, of confirmation and it was the passing of that order which made the sale absolute; so that it was not the lapse of 30 days that confirmed the sale but the passing of an order which could not be passed within 30 days. As the application was made here before the sale had been confirmed by an order, therefore under Order 44, Rule 5, the court was bound to order the mortgagee to receive the sum of money tendered and to give up the documents contemplated by Order 34, Rule 5, which supported his title.
It is clear from the above decision that if the money is tendered by the mortgagor before confirmation of sale under Order 34, Rule 5, C.P.C., the mortgagee is bound to receive the same the sale is to be set aside and the question of the expiry of limitation in deposit is of no consequence. In the instant case in view of the fact that the deposit was admittedly made before confirmation of sale and also within the period of limitation under Order 21, Rule 89, the deposit would be sufficient compliance under Order 34, Rule 5, C.P.C. and I find much force in the contention of the learned Counsel for the petitioners in this regard.
8. As the scope of review, it has been held in Valliammal v. Authorised Officer, Land Reforms Coimbatore 1972 T.N.L.J. 609 as follows:
Order 47, Rule 1, C.P.C., provides that person considering himself aggrieved by a decree or order may apply for a review of the judgment on account of some mistake or error apparent on the face of the record. The mistake or error within this provision is not confined to mistake. or error of facts. Even on a mistake or error of law, if apparent on the face of the record, the order is liable to be reviewed. The view expressed by the learned judge in the decision in C.R.P No. 916 of 1971 is contrary to the provisions of the Act and therefore, a review is called for.
In Harivishnu v. Ahmed Ishaque : [1955]1SCR1104 , at page 244. Their Lordships of the Supreme Court have observed.
What is an error apparent on the face of the record cannot be definite, precisely or exhaustively, there being an element of indefiniteness in its very nature and it must be left to be determined judicially on the facts of each case.
I also had an occasion to consider the scope of Order 47, C.P.C. in Gopalakrishniah K. v. K.Subramaniam (1989)1 L.W. 127 and allowed the revision and set aside the order refusing to review, after considering various decisions, it is clear that if the error is so manifest and clear, no court will permit the error to remain on record. In the instant case, in view of the facts already set out, the error is apparent on the face of record and that it is certainly a case for review as per Order 47, Rule 1, Code of Civil Procedure. Hence, for all these reasons the order passed by the court below is liable to be set aside.
9. However, the learned Counsel for the respondents submitted that the auction-purchasers should be compensated by directing the revision-petitioners to pay interest at 15 per cent per annum from the date of deposit till the date of the order. In this connection, the learned Counsel drew the attention of this Court to the 'decision in Surinder Nath kapoor v. Union of India : [1988]173ITR469(SC) . That was a case where the Income Tax Officer put up property to sale for amount not at all specified in garnishee notice. Though the sale was confirmed, the garnishee order passed was held to be null and void and consequently it was held that the sale in pursuance of the garnishee order would also be nullity and the sale was set aside. While setting aside the sale, it was observed that 'the auction-purchaser will be entitled to withdraw the amount unconditionally and he will be entitled to get interest at 15 per cent per annum for a period of two years and a half, during which the amount remained blocked, by way of compensation. The amount of interest calculated at the said rate for the said period comes to Rs. 14,17,875. Out of the said amount, the Revenue shall pay to the auction-purchaser a sum of Rs. 11,17,875 and the remaining sum of Rs. 3,00,000 shall be paid to the auction purchaser by the assessee.' That decision is not directly applicable to the instant case as we are concerned with court auction sale, but the principle laid down therein could be followed to the facts of this case. In the instant case the petitioners deposited the amount within the stipulated time which includes 5% amount payable to the auction purchasers upto that date. But, however, the court below rejected the deposit and confirmed the sale. The auction purchaser is not entitled to any interest after the period of 60 should not suffer for the wrong application of the law by the court below, and on that score the respondents can be granted compensation at the rate of 12 per cent per annum from 14.2.1983 for Rs. 35,000 till the date of this order, and the compensation amount is to be deposited within three months from this date.
10. In the result the revision is allowed, the order passed by the court below in E.A. No. 313 of 1983 is hereby set aside and consequently the sale will also be set aside on condition of the petitioners depositing a further sum by way of compensation, that is, the interest at the rate of 12 per cent per annum on Rs. 35,000 from 14.2.1983, till this date, within three months from this date. However, in the circumstances of the case, there will be no order as to cost.