1. ' This is a suit for recovery of money under Order XXXIV, rule 4, C. P. C. Claiming a decree for Rs, 71,780 with interest. On 2-2-1971, this Court passed a preliminary decree by consent of parties for the amount claimed with interest at 6% per, annum from the date of suit until payment and costs.
2. The defendant was permitted 6 months' time to pay the mortgage money. The defendant paid a sum of Rs, 50,000 from the decretal amount. However, upon the failure of the defendant to pay the balance of the decretal amount within prescribed time a final decree was passed by the Court on 9-12-1974 directing that the mortgage property be sold and the sale proceeds applied to the satisfaction of the decree. It seems before the property could be put to sale under the decree, on 7- 1-1975 the plaintiff in purported exercise of authority under a power of attorney executed by the defendant in his favour dated 15-6-1970, without reference to the Court sold the mortgaged property to one Mst. Zubaida Bano for Rs, 1,65,000.
3. ' It may be stated that the plaintiff had also filed another Suit No, 501 of 1970 against .The defendant under Order XXXVII, C. P. C. In which a consent decree was obtained by him. The mortgaged property in the present suit was got attached in execution proceedings in the aforesaid Suit No, 501/70 and an attachment had also been issued on the said property in another Suit No, 22 of 1971 filed against the defendant by the Standard Bank. The said two orders of attachment are still operating. On 29-5-1979 the defendant deposited the balance of the decretal amount, namely Rs, 31,000 in this Court in the present suit and moved the present application No, 2452/79 under Order XXXIV, rule 5, C. P. C. Praying for an order that the plaintiff be directed to deliver up the documents of title to the mortgaged property. The other Application No, 2955/79 filed by the defendant is under Order XXI, rule 2, C. P. C. For recording satisfaction of the decree and the third Application No, 2329/79 is also by the defendant under Order XXI, rule I, C. P. C. Requesting for permission to deposit the aforesaid balance amount of Rs, 31,100 due under the decree. I propose to dispose of all the aforesaid applications by this order.
4. ' It has been urged on behalf of the judgment-debtor that the right to redeem the mortgage continues to vest in the mortgagor till the sale is confirmed and the sale made without the intervention of the Court is without lawful effect. Order XXXIV, rule 5, sub-rule (1) of the Code of Civil Procedure provides as follows :--- "Where, on or before the day fixed or at any time before the confirmation of a, sale made in pursuance of a final 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 a final decree or, if such decree has bsen passed, an order-
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary ;
(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necesssa ry;
(c) ordering him to put the defendant in possession of the property."
5. ' The plain reading of the aforesaid provisions shows that the defendant (mortgagor) can redeem the mortgage "at any time before confirmation a sale made in pursuance of a final decree." If, however, an authority is needed on this point reference may be made by Malawa Mal v. Sunder Singh (1). No exception can be taken to the second submission of the counsel as well. In Ma Hnin Yeik v. K. A. R. K. Chattyar Firm (2), it was held that in case of a simple mortgage on the mortgagor making a default the mortgagee has the right to cause the mortgaged property to be sold ; but this does not mean that he can sell it himself without the intervention of the Court. The right to bring the property to sale must be worked out in execution proceedings under the supervision of the Court. Section 96 of the Transfer of Property Act provides that the provisions contained in the said Act which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title deeds. It, therefore, follows that, in case of equitable mortgage also the mortgagee has no right to sell the property without the intervention of the Court. The right, of redemption is a statutory right as provided by section 60 of the Transfer of Property Act and can be extinguished only in the manner provided by that section. Clearly, therefore, the judgment-debtor is entitled to an order under Order XXXIV, rule 5.
6. ' It was, however, contended on behalf of the decree-holder that the application is not maintainable, as the mortgage property has been sold in pursuance of a valid and subsisting power of attorney. It was conceded that the property has not been sold for the satisfaction of the decretal amount or the mortgage debt in this suit or the connected Suit No, 501/70. I do not see any force in the submission of the learned counsel for the decree-holder that the present application is incompetent on account of a transaction outside the Court affecting the property which is subject- matter of this suit. The clear requirement of rule 5 of Order XXXIV is that upon the payment into Court of the amounts due from the defendant under the preliminary decree, {{FOOT NOTE}}
(1) AIR 1933 Lah. 361 (2) AIR 1939 Rang. 321 {{FOOT NOTE}} ' the Court is bound to make an order directing the plaintiff to deliver up the documents referred to in the preliminary decree. The controversy between the parties as to the right of the decree-holder to dispose of the property under a power allegedly granted by the judgment-debtor is outside the scope of the present proceedings to determine.
7. ' In the result, I allow C. M. A. 2452/79 and direct that the decree-holder shall deliver up the documents referred to in the preliminary decree to the judgment-debtor. I also allow C. M. A.
8. 2955/79 and record the satisfaction of the decree. The decree-holder shall be entitled to withdraw the amount deposited in Court subject to the condition that he first delivers up the documents of title. The third Application C. M. A. No, 2329/79 seems to have become infructuous as the amount has already been allowed to be deposited in Court.