judgement:
ivil Appeal No. 2169 of 1970.
From the Judgment and Order dated 12.8.68 of the Gujarat High Court in F.A. No. 233 of 1963.
B.K. Mehta, U.A. Rana, Bhushan B. Oza and K.L. Hathi for the Appellants.
G.A. Shah and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by special leave granted by this Court under Article 136 of the Constitution.
The appeal arises out of land acquisition proceedings.
The appellants before us are the heirs and legal repre sentatives of the original claimants.
Appellants Nos.
1(a) to 1(c) are the heirs and legal representatives of original claimant No. 1 and appellants Nos.
2(i) to 2(ii) are the heirs and legal representatives of original claimant No. 2.
The acquisition was in respect of an area admeasuring 15 acres and 1 guntha belonging to claimant No. 1 (Original) and area admeasuring 6 acres and 25 gunthas belonging to claimant Nos. 1 and 2 (Original).
The lands are situated in the Bhavnagar District and are on the outskirts of the Bhavnagar City and adjoining the Bhavnagar Rajkot Road.
The acquisition forms part of a larger acquisition for the construction of an industrial estate at Bhavnagar.
The preliminary notification under section 4(1) of the Land Acquisition Act, 1894 was published on August 6, 1956.
The claimants made their claims before the Land Acquisition Officer who classified the lands as superior of Bagayat type of agricultural land and awarded compensation at the rate of Rs.2200 per acre which would come to about 0.48 p. per sq. yard.
This award was not accepted by the claimants and they made a reference which came up for hearing before the learned Civil Judge, Senior Division, Bhavnagar.
The evi dence of some instances of sale 746 was led before the learned Civil Judge by the respective parties but he did not rely upon any of the instances proved before him.
He considered the general situation of the lands and held that on the evidence it was shown that the lands had a considerable building potentiality and the Land Acqui sition Officer was in error in so far as he did not take that potentiality into account.
The learned Civil Judge considered the general situation of the land under acquisi tion and the potential value of the same for building pur poses and fixed the rate of compensation at Rs.4,400 per acre which had come to about 0.90p.
per sq. yard.
Being dissatisfied, the claimants preferred an appeal against the decision of the learned Civil Judge, Bhavnagar to the High Court of Gujarat.
The Division Bench of.
the High Court, which disposed of the appeal, took the view that the valua tion fixed by the learned Civil Judge was justified and dismissed the appeal.
This appeal is directed against the said decision of the High Court.
We do not feel called upon to enter into a detailed scrutiny of the evidence led by the parties before the learned Civil Judge.
The main instance relied upon by the claimants was by way of an agreement to sell dated January 21, 1957 and a sale deed dated April 2, 1957 in respect of the sale of 42552 square yards of land out of survey No. 333/2 which is adjoining the land with which we are con cerned which forms part of survey No. 33 1.
The land sold under this instance was known as "Kesarbagh" and was sold to Mahalaxmi Mills Limited by Prince Nirmal kumar singhji.
The rate at which it was sold works out to Rs.3 per sq. yard.
On the basis of this instance, the claimants had made their claim at Rs.3 per sq. yard before the Land Acquisition Officer.
The High Court inter alia rejected this instance on the basis that the contents of the sale deed were not prop erly proved.
However, after an order for remand made by this Court on August 25, 1981 evidence has been led regarding this sale and the sale deed has been duly proved by the evidence of one Dharamdas, a director of Mahalaxmi Mills Limited, the purchaser, and the vendor Prince Nirmal kumar singhji.
It was marked originally as Exhibit 87 and after the evidence on remand as Exhibit 152.
The evidence shows that this land was just adjacent to the land of the purchas er, Mahalaxmi Mills Limited.
The agreement of sale is dated January 21, 1957 and the conveyance or sale deed is dated April 2, 1957 as aforestated.
The price has been fixed under the agreement of sale.
This agreement of sale was entered into about five months after the publication of section 4 notification in the case before us The High Court rejected the said instance on the ground that the contents of the sale deed were not proved although the execution was thereof duly proved.
In view of the 747 evidence led after remand, it cannot be disputed that this agreement of sale as well as the sale deed have been duly proved and they have been duly marked as exhibits.
The High Court further took the view that in any event, no reliance could be placed on this instance of sale because the acqui sition of the land in question before us was for the con struction of an industrial estate at Bhavnagar and such construction was bound to have pushed up the price of land in the surrounding area.
There is, however, nothing in the evidence to show that there was any sharp or speculative rise in the price of the land after the acquisition and this has been noticed by the High Court.
It appears that under these circumstances, the High Court was not justified in not taking this instance into account at all as it has done on the ground that it was a post acquisition sale and could not be regarded as a comparable instance at all.
The market value of a piece of property for purposes of section 23 of the Land Acquisition Act is stated to be the price at which the property changes hands from a willing seller to a will ing, but not too anxious a buyer, dealing at arms length.
Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and, indeed the best, evidences of market value.
(See: Administrator General of West Bengal vs Collector, Varanasi, ; at para 8. ) Keeping these factors in mind, we feel that although the instance reflected in the sale deed (Exhibit 152) and the agreement for sale in connection with that land, pertains to a sale after the acquisition, it can be fairly regarded as reasonably proximate to the acquisition and, in the absence of any evidence to show that there was any speculative or sharp rise in the prices after the acquisition the agreement to sell dated January 21, 1957 must be regarded as furnish ing some light on the market value of the land on the date of publication of section 4 notification.
However, certain factors have to be taken into account and appropriate deduc tions made from the rate disclosed in the said agreement to sell in estimating the market value of the land with which we are concerned at the date of the acquisition.
One of these factors is that there seems to have been some rise in the price of land on account of the acquisition of the land in question before us for purposes of constructing an indus trial estate.
Another factor is that the land proposed to be purchased under the said agreement to sell was adjoining the land of the purchaser and the purchaser might have paid some extra amount for the convenience of getting the neighbouring land.
We find that the High Court placed reliance on the evidence 748 furnished by the instances at Exhibit 112 relied on by the State.
By Exhibit 112 land admeasuring 4 acres (19,360 sq. yard) was sold from Survey No. 384 for Rs.8,000.
This sale deed is dated February 23, 1953, that is, over a year prior to the date of the section 4 notification in the case before us.
The purchaser stated in the witness box that apart from Rs.8,000 mentioned as the consideration in the sale deed, he had to pay an extra amount of Rs.4,000.
Although the High Court has not relied upon this statement, it cannot be altogether ignored.
The land was sold at a Government auc tion which means that it was a distress sale.
There were execution applications pending against the vendor.
Under these circumstances, there is a little doubt that it was a distress sale and it hardly furnishes any reliable evidence for estimating the market value of the land.
Therefore, although the price of the land appearing in that instance comes to about 0.62p.
per sq.
yard, it furnishes no reliable guidance regarding the market price of the land.
As far as the sale instance evidenced by Exhibit 118 is concerned, it has been discarded by the High Court and, in our view, rightly so.
In the Trial Court neither the vendor nor the purchaser nor any person conversant with the sale was exam ined.
Not the original but only a certified copy of the sale deed was produced.
After the remand the situation appears to be hardly any better.
The State examined one Virbhadrasingh on whose behalf the land was purchased under the said sale deed.
He was a minor at the time when the sale deed (Exhibit 118) was executed.
Virbhadrasingh 's father had purchased the land in Virbhadrasingh 's name as Virbhadrasingh was a minor only about 12 years old at that time.
The evidence of Virbhadrasingh has no evidentiary value as he has no personal information regarding the sale under Exhibit 118.
One Ratilal who prepared the said document gave evidence in court but he did not have any personal knowledge about the transaction either.
Under these circumstances, no reliance can be placed on Exhibit 118.
In our view, the only comparable instance on the basis of which the market value at the time of the section 4 notification in respect of the acquired land can be deter mined is the sale proved by the sale deed (Exhibit 152) and the preceding agreement for sale in respect of the land sold which was entered into about five months after the notifica tion.
The price thereunder is Rs.3 per sq. yard.
From that price certain deductions have to be made on account of the various factors which have been enumerated earlier such as the rise in prices of land after the acquisition and so on.
Taking into account all these factors including the situa tion and potentialities of the acquired land, it ap 749 pears to us that it would be proper to fix the market value of the acquired land at Rs.8,800 per acre which comes to about Rs. 1.80 per sq. yard and we direct accordingly.
The decree passed by the Civil Judge, Senior Division, Bhavnagar will be amended accordingly.
The respondent will pay to the appellants one half of the costs of the appeal in this Court.
There will be no change as far as the rest of the order is concerned.

summary:
Certain lands situated on the outskirts of a large city were acquired by the respondent State after issuing prelimi nary notification under section 4(1) of the Land Acquisition Act, 1894 on August 6, 1956 for construction of an industrial estate.
The appellants claimed compensation at the rate of Rs.3 per sq. yard and cited in support thereof an agreement of sale dated January 21,1957 and a conveyance dated April 2, 1957 pertaining to a piece of land adjoining the acquired land showing the sale price at the rate of Rs.3 per sq. yard.
The respondent State relied on an auction sale dated February 23, 1953 at about 41p.
per sq. yard, evidenced by exhibit 112, and the instance evidenced by exhibit 118 pertaining to sale to a minor, transacted by his father.
The Land Acquisition Officer classified the land as superior agricultural land and awarded the compensation at the rate of Rs.2200 per acre, i.e., about 45p.
per sq. yard.
In the reference, the Civil Judge did not rely upon any of the instances proved before him, but considering the general situation of the land and its considerable building potentiality fixed the rate of compensation at Rs.4400 per acre, i.e., about 90p.
per sq. yard.
Dismissing the appeal, the High Court took the view that the valuation fixed by the Civil Judge was justified.
It held that a postacquisition sale could not be regarded as a comparable instance at all, since the acquisition for con struction of the industrial estate was bound to have pushed up the prices in the surrounding area.
It placed reliance on the evidence furnished by the instance at exhibit 112, over a year prior to 744 the date of section 4 notification, but discarded the instance evidence by exhibit 118 relied on by the State.
Allowing the claimants ' appeal by special leave, the Court, HELD: The market value of a piece of property for pur poses of section 23 of the Land Acquisition Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arm 's length.
Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and, indeed, the best, evidence of market value.
[747C] Administrator General of West Bengal vs Collector, Varanasi, ; , referred to.
In the instant case, the instance evidenced by exhibit 112 pertaining_ to sale of land in government auction relied on by the High Court was a distress sale.
There were execution proceedings pending against the vendor.
It could, thus, hardly furnish any reliable evidence for estimating the market value of the land in question.
The instance evidenced by exhibit 118 was rightly discarded by the High Court.
Only a certified copy of the sale deed pertaining thereto was produced in.
the trial court.
The evidence of the purchaser, who was minor at the time when the sale deed was executed, had no evidentiary value as he had no personal information regarding the sale.
No other person conversant with the sale was examined by the State.
[748AB, CF] The only comparable instance on the basis of which the market value at the time of the section 4 notification in respect of the acquired land could be determined was, therefore, the sale proved by the sale deed dated April 2, 1957 and the preceding agreement of sale dated January 21, 1957.
Though entered into about five months alter the notification it could be fairly regarded as reasonably proximate to the acquisition.
The price fixed under the said agreement was Rs.3 per sq. yard.
However, there seem to have been some rise in the price of land on account of the acquisition of the land in question for purposes of constructing the indus trial estate.
Further, the land proposed to be purchased under the agreement was adjoining the land of the purchaser and the purchaser might have paid some extra amount for the convenience of getting the neighbouring land.
These factors have to be taken into account and appropriate deductions made from the rate disclosed in the agreement in estimating the market value.
Considering these together with 745 the situation and potentialities of the acquired land, it would be proper to fix its market value at Rs.8800 per acre, which comes to about Rs. 1.80p.
per sq. yard.
The decree passed by the Civil Judge to be amended accordingly.
[748G, 747E]


judgement:
: Criminal Appeal Nos.
467 468 of 1989.
From the Judgment and Order dated 27.4.1989 of the Calcutta High Court in Crl.
Revision No. 641 and 720 of 1989.
737 A.D. Giri, D.P. Ghosh, S.B. Pathak and B.S. Chauhan for the Appellants.
N.N. Gooptu, Attorney General, P.P. Rao, D.K. Sinha, J.R. Das, N .A.
Choudhary, R.B. Mahato, Raj K. Gupta, Siba Pada Banerjee, Subhrangshu Banerjee and P.C. Kapur for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The special leave is granted and the appeal stands disposed of by this order.
The appellants accused are facing trial for an offence under secs.
302 34 IPC and alternatively under secs.
364 34 IPC before the City Sessions Court, 13th Bench, Calcutta in Sessions Trial No. 1 of November, 1987 (Session Case No. 5/87).
The prosecution examined in all 34 witnesses.
The last witness examined is the investigating officer (PW 34).
His examination went on for a number of days and came to an end on March 16, 1989.
On the next day that is, on March 17, 1989, the court examined the accused under sec.
313 of the Criminal Procedure Code and recorded their statements.
On March 21, 1989, the public prosecutor filed an appli cation proposing some more questions to be put to the first appellant by way of re examination under sec.
313 of the Code.
On the same day, the trial court by a considered order rejected that application.
The relevant portion of that order runs as under: "I think the Ld. P.P. can argue all these points as the time of advancing argu ments in this case and this case and the accused need not be re examined on this point under sec.
313 Cr.
The Ld.
P.P. has also submitted that in question No. 6 and question No. 7 the word "these witnesses" should be replaced by the name of the witnesses.
I think the names of the witnesses have already been put to the accused persons in the previous questions.
So in the question No. 6 and ques tion No. 7 the name of the witnesses need not be mentioned again.
Then it has been pointed out that the question No. 4 in place of the words "you all", the question should be writ ten as 'Khurshed, Bhulu, Noor Alam and tenea under your order. ' I think it is implied.
If other accused persons did anything at the order of one particular accused it is implied that all the accused persons 738 committed the mischief.
So on this point also the accused need not be re examined again.
Lastly, it has been pointed out that in ques tion No. 2 in place of P.W. 12 Abdullah Daweed the words "P.W. 7 Md. Mein" should be written.
On perusal of the evidence on record I find P.W. 12 Abdullah Dawood is also a witness of the occurrence and so the question need not be corrected.
Discussing the above circumstances, the petition filed by the prosecution this day for re examination of the accused persons under sec.
3 13 Cr.
P.C. for further re exami nation is rejected.
On March 30, 1989 the public prosecutor applied for adjournment of the case on the ground that he would like to move the High Court against the aforesaid order dated March 21, 1988.
The case was accordingly adjourned to April 18, 1989.
It is said that in between these days some correction slip was filed in the Court seeking 25 corrections in the statement of PW 34.
The said slip was not accompanied by any application nor was it served on counsel for the accused.
The trial court, however, in the interest of justice recti fied the typographical errors in the statement of PW 34 but refused to make other corrections which would have changed the substantive part of his evidence.
The State moved the High Court with Criminal Revision No. 64 1 of 1989 praying: (i) Corrections be made in the evidence of PW 34 as per slip supplied to the Trial Court; (ii) Additional statement of the first appellant under section 313 Cr.
P.C. be recorded in respect of questions proposed by the prosecution; and (iii)Transferring the case to some other Bench of the City Sessions Court as the trial judge has acted with bias.
There was another revision application filed by Smt.
Anushila Devi who claims herself to be a sister of the deceased Mahesh Kumar Agarwal and as a party interested in the case.
She also sought transfer of the case from the 13th Bench to some other Bench in the City Sessions Court on the apprehension that there would not be a fair trial in the case.
The High Court on examination of the records found that the correction slip filed before the that court was not part of the records in the case.
The High Court called for an explanation from learned trial judge who wrote to the High Court as follows: "The correction slip as referred to has not been pro 739 perly filed.
It is not signed by anybody.
The case number or the court number has not been mentioned in it.
Nor any petition has been filed by the prosecution along with such concerned correction slip.
Even the copy of the same has not been served upon the defence advocates.
Still then as many as 16 typograph ical mistakes have already been corrected out of 25 mistakes as per correction slip.
Other mistakes are not typographical mistakes and in the name of correction the evidence already recorded cannot be changed.
So other mistakes have not been corrected.
" He has also stated in the explanation: "Unsigned correction slip in 3 loose sheet could not be sent earlier as the case recorded was forwarded in a hurry and the said correc tion slip is now enclosed herewith." The High Court, however, was not satisfied with the explanation and expressed the view that the trial judge has not followed the proper procedure envisaged in sec.
278 of the Code since he has 'a closed mind '.
The Court also found fault with the procedure adopted by the prosecution, but liberty was reserved to the latter to file an application for re examination of PW 34.
As to the claim for re examination of the accused under sec.
3 13 of the Code, the High Court said as follows: "We have heard at length Mr. Durga Pada Dutta, the learned Advocate appearing on behalf of the accused opposite parties who frankly conceded that point Nos. 1, 2, 3, 4 & 5 could be allowed.
But objections were raised with regard to point Nos. 6 & 7 when it was suggested by the prosecution that a question should have been put regarding seizure of hair on 5.11.86 and of forwarding the same to the F.S.I. for comparison with the scalp haft of deceased Mahesh Kumar Agarwal and the report of the F.S.L.
It was suggested in point No. 7 that a question should be put regarding presence of accused Omar near the crossing of B.B. Ganguly Street and C.R. Avenue at about 1.15 a.m. on 5.11.
1986 when the I.O. 's testi mony was not very clear on the point.
" . . "We would have allowed ordinarily the applica tion filed on 21.3. 1989 with regard to point Nos.
1 to 5 and would have left the question on point Nos.
6 740 & 7 to the trial judge on the basis of conces sion made by Mr. Dutt, the learned Advocate for the accused opposite parties and also on the basis of our own opinion on this aspect of the case but then since we direct the trial court to hold the re examination of PW 34 on a proper application being filed by the prosecu tion in this regard.
We would expunge not only the examination under sec.
313 Cr.
P.C. which is already on record in respect of accused Mir Mohd. Omar but also in respect of the other accused persons and direct the court below to proceed afresh in the matter after the record ing of evidence including the re examination of PW 34 is complete and we would direct the court below further to hear out the submis sions of the prosecution as welt as defence regarding framing of proper questions under sec.
313 Cr.
P.C." The High Court also accepted the demand for transfer of the case and the matter was left to the Chief Judge, City Sessions Court either to try the case by himself or to transfer to some other Bench regard being had to the conges tion of the different Benches.
In this appeal, the accused have challenged the legality of the order of the High Court.
We have heard Mr. A.D. Giri, learned counsel for the appellants and learned Advocate General for the State of West Bengal, besides Mr. P.P. Rao, learned senior counsel for the private party.
We have also perused the material on record.
We find it difficult to support the impugned order.
It seems to us that the High Court has needlessly interfered with the discretion exercised by the trial court with regard to correction slip as well as on re examination of the accused under sec.
3 13 of the Code.
We do not find any infirmity in the procedure followed by the trial Judge and if there is any, it is only in the order of the High Court.
The High Court was uncharitable to the trial judge when it observed that he has 'a closed mind '.
It may be noted that the correction slip was not filed when the day to day evi dence of PW 34 was recorded and read over to him.
Nor it was filed on the last day of recording his evidence.
It does not bear any signature or the date.
The trial judge, however, thought fit to correct typographical errors in the statement of PW 34 which he would have corrected even otherwise.
He refused to make any correction or alter the substantive part of the evidence.
Indeed, he was fight in not tinkering with the substantive part of the evidence on the basis of an unsigned correction slip.
741 In the Sessions trial the court has limited jurisdiction with regard to correction of the recorded evidence of any witness.
Section 273 provides: "Procedure in regard to such evi dence when completed (1) As the evidence of such witness taken under sec.
275 or sec.
276 is completed it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the cor rectness of any part of the evidence when the same is read over to him, the magistrate or presiding judge may, instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.
" The object of sec.
278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any.
If the correction suggested by the witness is one which the judge considers necessary he will make it at once as required by sub sec.
(1) but if the correction is such that the judge does not consider neces sary, sub sec.
(2) requires that a memorandum of the objec tion be made and the Judge add his remarks, if any, thereto.
In the present case, the learned trial judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition.
The section is not intended to permit a witness to resile from his statement in the name of correction.
The learned trial judge was justified in refusing to effect the change which he thought was intended to change the earlier version.
He did not make a memorandum as the correction slip was unsigned and was not properly filed.
Now, since the correc tion slip as well as the remarks of the learned trial judge have become a part of the record, nothing more need be done as the provisions of sec.
278 are substantially complied with.
We equally see no justification for the High Court for giving liberty to the prosecution to file an application for re examination of PW 34.
In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW 742 34 would be recalled for further examination.
Here again it may be noted that the prosecution has closed the evidence.
The accused have been examined under sec.
3 13 of the Code.
The prosecution did not at any stage move the trial judge for recalling PW 34 for further examination.
In these cir cumstances, the liberty reserved to the prosecution to recall PW 34 for re examination is undoubtedly uncalled for.
There is yet another grave error committed by the High Court.
It has expunged the entire examination under sec.
3 13 of the Code of all the accused.
We fail to understand the need for this extraordinary step.
It is unfortunate that the High Court should make that order.
Assuming it was on ac count of its permission to re examine PW 34, even in that case it would be sufficient to further examine the accused with reference to the additional circumstances, ' if any, appearing against the accused on such re examination.
The object of sec.
3 13 was that the accused may be given an opportunity of explaining each and every circumstance ap pearing against him.
The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to be put to the accused.
It is his duty to examine the accused as per law.
It is, however, open to the prosecution to invite the attention of the Court if any incriminating circumstance is left out and not put to the accused.
We reserve liberty to the prosecution in this regard.
The question of transfer of the case to another Bench of the City Sessions Court also does not arise now.
We are told that the that judge has since retired and another judge has taken over his place.
He shall, therefore, take up this case expeditiously and proceed preferably day to day, as earlier ordered by the High Court.
In the result, the appeal is allowed and the order of the High Court is reversed.
This order shall be communicated to the that court within two days by cougher service.
The parties should appear before the trial court on August 14, 1989 to receive further orders.
T.N.A. Appeal allowed.

dataset_name: IN-Abs

summary:
In the Sessions trial of the appellants accused under section 302/ 34, I.P.C., the prosecution examined 34 wit nesses including the Investigation Officer (PW 34).
The Trial Court examined the accused under section 313 of the Code of Criminal Procedure, 1973 and recorded their state ments.
Thereafter the Public Prosecutor filed an application for re examination of the first appellant under section 313 which was rejected by the Trial Court.
An unsigned correction slip, without any application and service on the defence counsel, was also filed seeking correction in the statement of PW 34.
The Trial Court recti fied the typographical errors, but refused to make other corrections which would have changed the substantive part of the evidence.
The State preferred a Criminal Revision in the High Court which stated that the Trial Court has not followed proper procedure regarding correction or recorded evidence.
The High Court expunged the examination under section 3 13 of all the accused reserving liberty to the prosecution to file application for re examination of PW 34 and accepted the demand for transfer of the case.
Hence these appeals.
Allowing the appeals, and reversing the order of the High Court, HELD: 1.
The object of section 278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes.
If the 736 correction suggested by the suggested by the witness is one which the judge consideration necessary he will make it at once as required by sub section (1), but if the correction is such that the judge does net consider necessary, subsec tion (2) requires that a memorandum of the objection be made, and the Judge add his remarks, if any, thereto.
[741E] 1. 1 In the instant case, the trial judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition.
The section is not intended to permit a witness to resile from his statement in the name of correction.
The trial judge was justified m refusing to effect the change which he thought was intended to change the earlier version.
He did not make a memorandum as the correction slip was unsigned and was not properly filed.
Since the correction slip as well as the remarks of the trial judge have become a part of the record, nothing more need he done as the provisions of section 278 are substantially complied with.
[741F G] 2.
The object of section 313 is that the accused may he given an opportunity of explaining each and every circum stance appearing against him.
The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to he put to the accused.
It is his duty to exam ine the accused as per law.
It is, however, open to the prosecution to invite the attention of the Court to any incriminating circumstance left out and not put to the accused.
[742C D] 2.
I In the instant case, after the prosecution has closed the evidence the accused were examined under section 313 of the Code.
The prosecution did not at any stage move the trial judge for recalling PW 34 for further examination.
Therefore there was no justification for the High Court for giving liberty to the prosecution for re examination of PW 34 and expunging the examination of all the accused under section 313.
[742A 741H] 3.
In the instant case, as the trial judge has since retired the question of transfer of the case to another Bench of the City Sessions Court does not arise.
[742E]


judgement:
vil Appeal Nos.
2990 91 of 1980.
From the Judgment and Order dated 20.9.
1979 & 11.9.79 of the Madhya Pradesh High Court in Misc.
Appeal No. 113 of 1976.
Shiv Dayal Srivastava, T.S. Krishna Moorthy lyer, D.N. Mishra, R.P. Srivastava, section Sukumaran and H.K. Puri, Harish N. Salve, K.K. Mohan, A.K. Sanghi, S.K. Agnihotri, Ashok Singh, H.K. Puri and 700 S.K. Gambir for appearing parties.
The Judgment of the Court was delivered by OJHA, J.
These two appeals by special leave raise an interesting question as to whether the provisions contained in Order 34 Rule 5 of the Code of Civil Procedure (hereinaf ter referred to as the Code) are attracted during the course of execution of an order of sale of mortgaged property passed under section 32 of the State Financial Corporation Act, 1951 (hereinafter referred to as the Act).
Necessary facts in order to appreciate the context in which this question arises may be stated in brief.
Maganlal who is the appellant in Civil Appeal No. 2990 of 1980 executed a mort gage on July 16, 1965 in favour of M.P. State Financial Corporation (hereinafter referred to as the Corporation) as security for a loan taken by him from the Corporation.
The amount of loan not having been paid by Maganlal the Corpora tion initiated proceedings under section 31 of the Act for recovery of Rs.51,799, which according to it was the amount due, by attachment and sale of the mortgaged property.
This application was made as contemplated by Section 31 of the Act before the District Judge.
After adopting the procedure contemplated by section 31 of the Act the District Judge passed an order for sale of the property which was ultimate ly sold for Rs.53,000 in an auction.
M/s Jaiswal Industries (hereinafter referred to as the first purchaser) was the highest bidder.
Magahlal made an application under Order 21 Rule 90 of the Code for setting aside the sale.
This appli cation was allowed by the Additional District Judge and the sale was set aside.
Aggrieved by that order the first pur chaser preferred a miscellaneous appeal in the High Court and also made an application for staying further proceedings for re sale.
The High Court, however, did not stay further proceedings for re sale but only ordered that the fresh sale should not be confirmed till the disposal of the appeal.
Fresh auction accordingly took place and the sale was knocked down in favour of Ramnarayan and others (hereinafter referred to as the second purchaser) who are the appellants in Civil Appeal No. 2991 of 1980.
The appeal of the first purchaser was subsequently allowed by the High Court.
The application made by Maganlal under Order 21 Rule 90 of the Code was dismissed and the sale in favour of the first purchaser was confirmed.
It is this order which has been challenged in Civil Appeal No. 2990 of 1980 by Maganlal and by the second purchaser in Civil Appeal No. 2991 of 1980, as already indicated above.
Maganlal has made an application before this Court under order 701 34 Rule 5 of the Code being C.M.P. No. 9940 of 1982 to which an objection has been filed.
This application was ordered to be put up at the time of the hearing of the appeal.
Subse quent events and proceedings of the court below on the basis whereof this application has been made as stated therein are these.
A sum of Rs.65,000 was paid by Maganlal to the Corpora tion on December 3, 1988 in full and final settlement of its claim and the Corporation acknowledged it by granting a receipt.
Certification of the adjustment thus made was recorded by the District Judge on April 6, 1981.
An applica tion purporting to be under Order 34 Rule 5 of the Code was made on November 20, 1981 by Maganlal for depositing Rs.2,650 equivalent of 5% of Rs.53,000 which was the highest bid of the first purchaser and a further sum of Rs.7,300, that is, 5% of Rs. 1,46,000 which was the highest bid of the second purchaser.
The prayer which was made in this applica tion was that the aforesaid sums may be paid to the first and second purchasers respectively and a final decree be passed in his favour in accordance with Order 34 Rule 5 of the Code.
The Additional District Judge by his order dated November 27, 1981 permitted Maganlal to deposit the two amounts separately at his risk and we are informed by his learned counsel that these amounts were deposited in pursu ance of the said permission.
According to learned counsel for Maganlal no final orders were passed on the aforesaid application by the Additional District Judge in view of the pendency of these appeals in this Court and it was as such that C.M.P. No. 9940 of 1982 referred to above was filed in this Court.
It was urged by learned counsel for Maganlal that in case C.M.P. No. 9940 of 1982 is allowed it will not be necessary for him to press the merits of the appeals and it is only in the event of the said application being dismissed that merits of the appeal will have to be pressed.
He, therefore, made a request that the said application may be decided first.
Learned counsel for the first and the second purchasers did not seriously dispute the above contention.
We have accordingly heard learned counsel for the parties on the said application and have not heard them on the merits of the appeals at this stage.
The aforesaid application has been opposed by learned counsel for the first and second purchasers on the ground that an order of sale of the mortgaged property passed by the District Judge under Section 32 of the Act after affect ing an attachment under section 31 thereof will not come within the purview of a final decree for sale of mortgaged property contemplated by Order 34 Rule 5 of the Code and as such the 702 benefit of that provision could not be extended to Maganlal.
According to learned counsel for the purchasers Order 34 Rule 5 of the Code could be applied only if in a suit insti tuted in this behalf on the basis of a mortgage deed a final decree for sale was obtained and the property was put to auction in pursuance of such decree.
The other submission which was made by them was that in any view of the matter the High Court after allowing the appeal filed by the first purchaser having confirmed the sale in his favour, an appli cation under Order 34 Rule 5 of the Code was not maintain able inasmuch as the said provision contemplated payment "on or before the day fixed or at any time before the confirma tion of a sale".
Learned counsel for Maganlal on the other hand urged that notwithstanding an order of confirmation of sale in favour of the first purchaser having been passed by the High Court Order 34 Rule 5 of the Code would still be attracted inasmuch as these appeals have been filed against the said order and till these appeals are decided the sale in favour of the first purchaser cannot become absolute.
As regards the second purchaser he pointed out that while permitting fresh sale during the pendency of the appeal by the first purchaser the High Court had specifically directed that the fresh sale which may take place shall not be confirmed.
He also urged that Order 34 Rule 5 of the Code was attracted even to an order of sale of mortgaged property passed under section 32 of the Act and since the right of redemption which vests in Maganlal has not yet extinguished in view of the pendency of these appeals there was no impediment in the relief contemplated by Order 34 Rule 5 of the Code being granted.
We shall first deal with the question with regard to the effect of an appeal being pending against an order dismiss ing an application under Order 21 Rule 90 of the Code.
In Chandra Mani vs Anarjan Bibi, A.I.R. 1934 P.C. Page 134 in execution of two final mortgage decrees for sale, the mort gaged properties were sold by auction.
The judgment debtors filed applications under Order 21 Rule 90 of the Code which were dismissed and the sales were confirmed in pursuance of Order 21 Rule 92 on April 22, 1924.
Appeals were filed against this order by some of the judgment debtors in the High Court which were dismissed on March 17, 1927.
Sale certificates were thereafter granted to the two auction purchasers on May 19, 1928 and June 6, 1928 respectively, who thereupon applied on September 10, 1928 for possession of the properties purchased by them.
These applications were objected to by the judgment debtors on the ground that they were barred by limitation under Article 180 of the Limita tion Act, 1908 703 which provided that such an application must be made within three years from the time when the sale becomes absolute.
The Subordinate Judge overruled the objection on the ground that in view of the pendency of the appeals filed by the judgment debtors against the order dismissing their applica tions under Order 21 Rule 90 of the Code time did not begin to run until March 17, 1927 when the said appeals were dismissed by the High Court.
On appeal by the judgment debtors the High Court took the view that the sale became absolute on April 22, 1924 when the Subordinate Judge con firmed the sales.
On further appeal by the auction purchas ers the order of the High Court was reversed by the Privy Council and it was held: "Upon consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when the sale becomes absolute" in Act.
180, Tim.
Act, regard must be had not only to the provisions of 0.21, R. 92(1) of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under 0.21, R.92(1).
The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of article 180, Lim.
Act, until the disposal of the appeal, even though the Subor dinate Judge may have confirmed the sale, as he was bound to do, when he decided to disal low the above mentioned application.
Their Lordships therefore are of opinion that on the facts of this case the sales did not become absolute within the meaning of article 180, Lim.
Act, until 17th March 1927, and that the applications for possession of the properties purchased at the auction sales were not barred by the Limita tion Act.
" A similar view was taken by this Court in Sri Ranga Nilayam Ramkrishan Rao vs Kandokari Chellayamma and another; , where it was held that when an appeal is filed against an order refusing to set aside an execution sale under Order 21 Rule 90 of the Code no finality can be attached to the order confirming the sale until the appeal is decided.
In S.V. Ramalingam & others vs K.E. Rajagopalan and other, [1975] 2 M.L.J. Page 494 the question came up directly in connection with the applicability of Order 34 Rule 704 5 itself which contemplates payment into court "on or before the day fixed or at any time before the confirmation of a sale".
In that case too in pursuance of a final decree passed in this behalf the mortgaged property was sold and the applications made by the mortgagors for setting aside the sale were dismissed and the sale was confirmed and the sale certificate was also engrossed on stamp papers.
The mortgagors filed an appeal against that order before the High Court and during the pendency of the appeal an applica tion under Order 34 Rule 5 was filed for redemption of the mortgage.
This application was opposed inter alia on the ground that such an application could not lie after the sale had been confirmed by the lower court.
While repelling the objection of the auction purchaser and holding that the judgment debtors were entitled to the benefit of Order 34 Rule 5 of the Code it was held by Mr. Justice section Natarajan (as His Lordship then was): "The confirmation of a sale subsequent to the dismissal of a petition under Order 21, rule 90 cannot, in reality, alter the situation when the mortgagor judgment debtor has pre ferred within time an appeal against the dismissal of his petition under Order 21 Rule 90.
Though the confirmation of the sale does take the auction purchaser a step further than before the confirmation of the sale, the confirmation by itself, is in one sense, inchoate.
The confirmation gives the sale only viability but does not render the sale an indefeasible one, till such time as the appeal preferred by the mortgagor against the validi ty of the sale remains undisposed.
In that sense, the confirmation effected by the exe cuting Court may become final as far as the executing Court is concerned, but it certainly does not stamp the transaction with irrevoca ble finality when alone the rights of parties get crystallised beyond retracement.
Conse quently, the appeal preferred by the judgment debtor has the effect of rendering a sale and its confirmation fluidal and nebu lous.
It, therefore, follows that the finality of the sale is rendered at large before the appellate Court in appeal and as such, the petitioners will be entitled to exercise the right conferred on them under Order 34, rule 5 to redeem the mortgage.
" The same view was reiterated in almost an identical case by a Bench of the Madras High Court in M. Sevugan Chettiar vs V.A. Narayana Raja, A.I.R. 1984 Madras Page 334.
It was held that so long as there is no confirmation of sale in the eye of law and matter was sub 705 judice in appeal time was available for the judgment debtor to make the deposit under Order 34 Rule 5 of the Code and the process of deposit could be worked out until the confir mation of sale reaches the finality.
Section 60 of the Transfer of Property Act confers on the mortgagor a right to redeem a mortgage.
In so far as it is relevant for the purpose of these appeals the said sec tion reads as hereunder: "60.
Right of mortgagor to redeem .
At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re transfer the mortgaged.property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest trans ferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court." In Raghunath Singh and others vs Pt.
Hansraj Kunwar and others, A.I.R. 1934 P.C. Page 205 in a suit filed for re demption of a mortgage a decree was passed containing the provision that in case of default by the plaintiff in payment his case will stand dismissed.
Payment as contem plated by the decree was, however, not made and subsequently a second suit for redemption was filed.
It was contested inter alia on the ground that in view of the non payment of the decretal amount the previous suit stood dismissed and on account of the dismissal of that suit the subsequent suit was not maintainable inasmuch as right of redemption stood extinguished.
The Privy Council after making reference to the proviso to section 60 of the Transfer of Property Act rejected the aforesaid objection and held: "The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived 706 by means and in manner enacted for that pur pose, and strictly complied with.
In the present case the only basis for the claim that the right to redeem has been extinguished in section 60; but in their Lordships ' view the old decree cannot properly be construed as doing that which it does not purport to do, viz., as extinguishing the fight to redeem.
" This question came up very recently before this Court in Mhadagonda Ramgonda Patil and others vs Shripal Balwant Rainade and others, [1988] 3 S.C.C. Page 298.
The mortgagors in that case filed a suit for redemption and obtained a final decree for sale of the mortgaged property.
They, however, did not execute that decree and allowed the same to be time barred.
Subsequently, a second suit for redemption was, filed claiming that the mortgage still subsisted and the mortgagors were entitled to redeem the same and get possession of the mortgaged property.
The suit was contested inter alia on the ground that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit their right of redemption had been extinguished.
The aforesaid plea raised in defence was repelled by the trial court and the suit for redemption was decreed.
The defend ants preferred an appeal against that decree before the High Court and raised a similar contention as was their defence in the trial court.
It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues, still the right of redemption was not extinguished.
The findings of the High Court aforesaid with regard to the maintainability of the second suit for redemption were challenged by the defendants before this Court and it was reiterated by their learned counsel that second suit was not maintainable.
While repelling this submission and interpret ing the provisions to section 60 of the Transfer of Property Act it was held: "It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a court.
We are not concerned with the question of extinguishment of the right of redemption by the act of the parties.
The question is whether by the preliminary decree or final decrees passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished.
The decree that is referred to in the proviso to Section 60 of the Trans fer of Property Act is a final decree in a suit for foreclosure, as provided in sub rule (2) of Rule 3 of Order 34 and a final decree in a redemption suit as 707 provided in Order 34, Rule 8(3)(a) of the Code of Civil Procedure.
Sub rule (2) of Rule 34, inter alia, provides that where payment in accordance with sub rule (1) has not been made, the court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mort gaged property and also, if necessary, order ing the defendant to put the plaintiff in possession of the property.
Thus, in a final decree in a suit for foreclosure, on the failure of the defendant to pay all amounts due, the extinguishment of the right of re demption has to be specifically declared.
Again, in a final decree in a suit for redemp tion of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) if sub rule (3) of Rule 8 of Order 34 of the Code of Civil Procedure.
These are the two circumstances (1) a final decree in a suit for foreclosure under Order 34, Rule 3(2); and (2) a final decree in a suit for redemption under Order 34, Rule 8(3)(a) of the Code of Civil Procedure When the right of redemption is extinguished.
" It was further held that in a suit for redemption of a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale.
In view of these provisions the question of merger of mortage debt in the decretal debt does not arise at all.
In this view of the matter we are of the opinion that in case the provisions of Order 34 Rule 5 of the Code are held to be applicable to the facts of the instant case appropri ate relief can be granted thereunder as the order of confir mation of the sale passed by the High Court in favour of the first purchaser has not become absolute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extinguished.
We shall now advert to the question as to what is the nature of an order passed by the District Judge under sec tions 31 and 32 of the Act.
Clause (a) of sub section (1) of Section 31 of the Act which is relevant for the purpose of these appeals reads: "31.
(1) Where an industrial concern, in breach of any 708 agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 and the industrial concern fails to make such repayment, then without prejudice to the provisions of section 29 of this Act and of section 69 of the any officer of the Financial Corporation, generally or specially authorised by the Board in this behalf, may apply to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely: (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or Sub section (1) of section 32 of the Act provides: "32.
(1) When the application is for the reliefs mentioned in clauses (a) and (c) of sub section (1) of section 31, the district judge shall pass an ad interim order attaching the security, or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value to the outstanding liability of the industrial concern to the Financial Corpora tion, together with the costs of the proceed ings taken under section 31, with or without an ad interim injunction restraining the industrial concern from transferring or remov ing its machinery, plant or equipment.
" Sub section (4) of section 32 contemplates issue of a notice to the industrial concern in the manner stated there in.
Sub section (5) inter alia contemplates that if no cause is shown on or before the date specified in the notice the District Judge shall forthwith make the ad interim order absolute and direct the sale of the attached property.
Sub section (6) on the other hand contains the procedure to be followed by the District Judge if cause is shown by the industrial concern 709 on receipt of the notice and provides that after making an investigation as contemplated the District Judge may inter alia confirm the order of attachment and direct the sale of the attached property.
Sub section (8) of section 32 pro vides: "(8) An order of attachment or sale of proper ty under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeholder.
" In Gujarat State Financial Corporation vs M/s. Natson Manufacturing Co. (P) Ltd. & Ors., [1979] 1 S.C.R. Page 372 the question as to what was the nature of proceedings under Sections 31 and 32 of the Act came up for consideration before this Court in connection with an objection about payment of court fee on an application under section 31(1).
It was held that the form of the application, the nature of the relief, the compulsion to make interim order, the limit ed inquiry contemplated by sub section (6) of section 32 and the nature of relief that can be granted and the manner of execution clearly show that the application under section 31(1) is neither a plaint as contemplated by Article 1 of Schedule 1 nor an application in the nature of a plaint as contemplated by Article 7 of the Court Fees Act, 1870.1t was also held that section 31(1) of the Act prescribes a special procedure for enforcement of the claims of the Financial Corporation and it is not even something akin to a suit of a mortgagee to recover mortgage money by sale of mortgaged property.
It was pointed out that the distinguishing fea tures noticeable between a suit for recovery of mortgage money by sale of mortgaged property and an application under section 31 for one or more reliefs specified therein are that even if the Corporation applicant so chooses it cannot in the application pray for a preliminary decree for ac counts or final decree for payment of money nor can it seek to enforce any personal liability even if such one is in curred under the contract of mortgage.
The Corporation cannot pray for a decree of its outstanding dues and can make an application for one of the three reliefs mentioned in section 31(1), none of which if granted results in a money decree or decree for recovery of outstanding loans or advance.
It was further held that a substantive relief in an application under section 31(1) "is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree".
With regard to the scope of sub section (6) of section 32 it was held that it has to be read in the context in 710 which it is placed and it does not expand the context in the application as if it is a suit between a mortgagee and the mortgagor for sale of mortgaged property.
The relief claimed under section 31(1) was held not to be a substantive relief which can be valued in terms of the monetary gain or preven tion of monetary loss.
It was pointed out that the claim of the Corporation in an application under section 31(1) was that there is a breach of agreement or default in making repayment of loan or advance or instalment thereof and, therefore, the mortgaged property could be sold.
In M/s. Everest Industrial Corporation and others vs Gujarat State Financial Corporation, [1987] 3 S.C.C. Page 597 a question arose as to whether an order under section 34 of the Code could be passed in proceedings under section 31(1) of the Act.
After referring to the decision in the case of Gujarat State Financial Corporation (supra) it was held that if as held by this Court in that case the proceed ing instituted under section 31(1) of the Act is something akin to an application for attachment of property in execu tion of a decree at a stage posterior to the passing of the decree no question of passing any other under section 34 of the Code would arise since that section could be applicable only at the stage of the passing of the decree and not to any stage posterior to the decree.
In view of these two decisions the law seems to be settled that an application under section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortga gee and the mortgagor for sale of mortgaged property.
On the other hand the substantive relief in an application section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree.
We now turn to the crucial question as to whether the relief contemplated by Order 34 Rule 5 of the Code which in substance is to permit redemption of the mortgage during the course of executing of a final decree for sale of mortgaged property can be granted even after the property which was mortgaged as security for loan taken from the Corporation has, in execution of an Order under Section 32 of the Act passed on an application under Section 31(1) thereof, been sold by the District Judge following the procedure contem plated by Sub section (8) of Section 32 of the Act.
711 In this connection, it is relevant to note that in neither of the two cases namely, Gujarat State Financial Corporation and M/s Everest India Corporation, (supra) Sub section (8) of the Section 32 of the Act came up for consid eration.
Section 46 B of the Act reads as hereunder: "46B.
The provisions of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern.
" No provision in the Act or any Rule or Order made there under has been brought to our notice stating that the effect of any action taken thereunder including the passing or orders of attachment and sale under Sections 31 and 32 thereof, is to extinguish the right of redemption.
In other words, there is nothing in the Act or in any Rule or Order made thereunder which may be inconsistent with Section 60 of the particularly the proviso there to.
Consequently no provision in the Act can be read "in derogation" of the .
said Section 60.
It is true that under the Code it is not necessary to attach the mortgaged property before putting it to sale but Section 31 of the Act contemplates attachment of even the mortgaged property and Section 32 thereof speaks of an Order of sale of the attached property, but that alone can by no stretch of imagination have the effect of extinguishing the equity of redemption.
Such attachment does not have that effect either under the proviso to Section 60 of the Trans fer of Property Act or under any provision of the Act, or Rule or Order made thereunder Sections 31 and 32 of the Act in so far as they contain the requirement of attaching the mortgaged property before its sale and ordering sale of the attached property read with Sub section (8) of Section 32 of the Act will, therefore, have the only effect that the said requirement "shall be in addition to, and not in derogation of" the provisions contained in the Code for sale of mort gaged property.
The purpose of enacting Sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recovery of the dues of the Financial Corporation.
This purpose however was, in cases covered by 712 clause (a) of Sub section (1) of Section 31 confined to the stage of obtaining an Order akin to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothe cated or assigned to the Financial Corporation as security for the loan or advance" could be sold.
Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (a) of Sub section (1) of Section 31 could be sold.
After this stage was reached sale in execution of an Order under Section 32 of the Act was for purposes 'of execution put at par with sale in execution of a decree obtained in a suit, by enacting Sub section (8) of Section 32 of the Act.
This Sub section as noted earlier provides that an order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeholder.
Expressions "as far as practicable" and "in execution of a decree as if the Financial Corporation were the decree holder" are the only expressions which qualify the "manner provided" for "sale of property in execution of a decree", as contained not only in some specific provision of the Code e.g. Order 21 thereof but "in the Code of Civil Procedure, 1908" namely, all the provisions in the Code in this regard ' wherever they may be.
If in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the Code for execution of a decree for sale of such properties.
as are referred to in clause (a) of Sub section (1) of Section 31 of the Act, it would have made some provision analogous to provisions contained in the enactments for revenue recovery.
But that was not done.
Instead, Sub sec tion (8) was incorporated in Section 32 of the Act.
It is in this background that the question whether provisions of Order 34 Rule 5 of the Code will be attracted or not to the facts of the instant case has to be considered.
Relying on a decision of the Karnataka High Court in M/s Hotel Natraj vs Karnataka State Financial Corporation, A.I.R. 1989 Karnataka 90 it was urged by learned counsel for Maganlal that in view of sub section (8) of section 32 of the Act the applicability of the provisions of Order 34 Rule 5 of the Code cannot be denied to the facts of the instant case.
Learned counsel for the purchasers on the other 713 hand urged that section 32(8) of the Act made the manner provided in the Code Applicable only "as far as practicable" and there was neither a decree nor was the Financial Corpo ration as decree holder in a suit for sale but was only deemed to be a decree holder by legal fiction because of the expression in execution of a decree as if the Financial Corporation were the decree holder" We shall first deal with the scope and import of the expres sion far as practicable" and "in execution of a decree as if the Financial Corporation were the decree holder" used in sub section (8) of section 32 of the Act.
Without anything more the expression "as far as practicable" will mean that the manner provided in the Code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied.
It will be for the person assert ing that a particular provision with regard to execution of a decree for sale of an immovable property contained in the Code of Civil Procedure will not apply to execution of an order under section 32 of the Act on the ground that it was not practicable to show as to how and why it was not prac ticable.
As regards the second expression namely "in execu tion of a decree as if the Financial Corporation were the decree holder" it may be pointed out that even though an order under section 32 as seen above is not a decree stricto sensu as defined in section 2(2) of the Code and the Finan cial Corporation would not as such be called the decree holder, section 32(6) of the Act imports a legal fiction whereby the order under section 30 of the Act for purposes of execution would be a decree and the Financial Corporation a decree holder.
Apparently, the person against whom such decree has been executed namely the debtor of the Financial Corporation would be the judgment debtor.
In East End Dwell ings Company Limited vs Finsbury Borough Council, [1952] Appeal Cases 109 Lord Asquith at page 132 observed "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevita bly have flowed from or accompanied it .
The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs" It is also settled law that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond the legitimate field.
Reference for the proposition may be made to the 714 decisions of this Court in The Bengal Immunity Company Limited vs The State of Bihar and others, [1955] 2 S.C.R. Page 603; The Commissioner of Income Tax, Bombay City 1, Bombay vs Amarchand N. Shroff, [1963] Supp. 1 S.C.R. Page 699 and Commissioner of Income Tax.
Gujarat vs VadilaI Lal lubhai, etc.
, As is apparent from the plain language of section 32(8) of the Act the legal fiction was created for the purpose of executing an order under section 32 of the Act for sale of attached property as if such order was a decree in a suit for sale and the Financial Corporation was the decree holder whereas the debtor was the judgment debtor.
Consequently, the provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property con tained in Order 21 of the Code including the right to file an appeal against such orders passed during the course of execution which are appealable, shall apply mutatis mutandis to execution of an order under section 32 of the Act unless some provision is not practicable to be applied.
It cannot be disputed that the provisions contained in Order 34 Rule 5 of the Code are attracted as is apparent from the plain language thereof during the proceedings in execution of a final decree for sale and are thus provisions contained in the Code with regard to and having a material beating on the execution of a decree as aforesaid.
As seen above, the provisions contained in Order 34 Rule 5 of the Code in substance permit the judgment debtor to redeem the mortgage even at the stage contemplated by Order 34 rule 5 unless the equity of redemption has got extinguished.
Since the contin gency whereunder an equity of redemption gets extinguished is contained in the proviso to section 60 of the and since as indicated above, in the instant case the equity of redemption has not extinguished we find no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under section 32 of the Act, the provision contained in Order 34 Rule 5 of the Code shall not apply.
Nothing has been brought to our notice as to how and why it is not practicable to apply the said provision.
As already pointed out earlier it has been held by this Court in the case of Mhadagonda Ramgonda Patil, (supra) that in a suit for re demption of as mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale and that in view of these provisions the question of merger of mortgage debt in the decretal debt does not at all arise.
We again do not find any good ground for holding that he said principle will not be attracted to 715 a sale which has taken place pursuant to an order under section 32 of the Act in so far as the provisions in the Code with regard to execution of a decree are concerned.
Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applica ble to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying section 34 of the Code as was sought to be done in the case of M/s Everest Industrial Corpora tion, (supra) nor could it be extended for treating the application made under section 31(1) of the Act as a plaint for purposes of payment of court fee as was sought to be done in the case of Gujarat State Financial Corporation, (supra).
That the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under section 32 of the Act is clear from section 32(8) of the Act and the reasons stated above.
It would also be so inasmuch as even otherwise once the order under section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would get attracted.
In National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., [1953] S.C.R. Page 1028 an appeal was filed before a Single Judge of the Bombay High Court under section 76(1) of the which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High Court having jurisdiction.
The , however, did not make any provision with regard to the procedure to be fol lowed by the High Court in the appeal or as to whether the order of the High Court was appealable.
Against the judgment of the Single Judge an appeal was preferred under clause 15 of the Letters Patent.
That appeal was allowed and the judgment of the Single Judge was reversed.
Before the Su preme Court an objection was raised that the Letters Patent appeal was not maintainable.
While repelling the said objec tion it was held: "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and 716 procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction.
The rule is well settled that when a statute directs that an appeal shall lie to a Court already estab lished, then that appeal must be regulated by the practice and procedure of that Court.
This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd. vs Postmaster General, [19 13] A.C. 546, in these terms: "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
" The same view was expressed by their Lordships of the Privy Council in R.M.A.R. KLA.
Adaikappa Chettiar vs Ra.
Chandrasekhara Thevar, [1974] 741A 264, wherein it was said: "Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a fight of appeal." Again in Secretary of State for India vs Chellikani Rama Rao, Mad 617, when dealing with the case under the Madras Forest Act their Lordships observed as follows: "It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted.
In their Lord ships ' opinion this objection is not well founded.
Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordi nary Courts of the country, with regard to whose procedure, orders, and decrees the 717 ordinary rules of the Civil Procedure Code apply." Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the princi ple enunciated therein is one of general application and has an apposit application to the facts and circumstances of the present case.
Section 76 of the con fers a right of appeal to the High Court and says nothing more about it.
That being so, the High Court being seized as such of the appel late jurisdiction conferred by section 76 it has to exercise the jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the .
" In view of the foregoing discussion we are of the opin ion that the application made by Maganlal under Order '34 Rule 5 of the Code is maintainable and the requirements of the said provision having been satisfied the application deserves to be allowed.
In the result, while C.M.P. No. 19760 of 1984 which is for initiating contempt proceedings is dismissed, C.M.P. No. 99409 1982 under Order 34 Rule 5 of the Code filed by Magan lal is allowed.
Accordingly Civil Appeal No. 2990 of 1980 filed by Maganlal as also the application made by him under Order 21 Rule 90 of the Code are allowed.
The order appealed against passed by the High Court is set aside and the order passed by the Additional District Judge setting aside the auction sale in favour of the first purchaser is restored.
Civil Appeal No. 2991 of 1980 filed by the second purchaser is also allowed in so far as it prays for the setting aside of the order of the High Court.
However, on the view we have taken the subsequent auction sale held in favour of the second purchaser cannot be sustained and is also hereby set aside.
As a consequence we direct that since the Corporation in the instant case has accepted Rs.65,000 in full and final satisfaction of its claim, it shall return the mortgage deed executed by Maganlal to him.
The Additional District Judge in whose court the application under Order 34 Rule 5 of the Code was made as stated earlier shall strike off the execu tion in full and final satisfaction.
The sum of Rs.53,000 deposited by the first purchaser together with Rs.2,650 representing 5% of the said sum deposited by Maganlal and interest which may have accrued on these amounts shall be paid over the first purchaser.
Likewise, the 718 sum of Rs. 1,46,000 deposited by the second purchaser to gether with Rs.7,300 representing 5% of the said sum depos ited by Maganlal and the interest which may have accrued on these amounts shall be paid over to the second purchaser.
There shall be no order as to costs.
R.S.S. Appeals allowed.

summary:
Maganlal executed a mortgage in favour of M.P. State Financial Corporation as security for a loan.
The amount of loan not having been paid, the Corporation initiated pro ceedings before the District Judge under section 31 of the for attachment and sale of the mortgaged property, which was ultimately auc tioned and purchased by M/s Jaiswal Industries, the first purchaser Maganlal made an application under Order 21 Rule 90 of the Code of Civil Procedure with the result that the sale was set aside by the Additional District Judge.
The first purchaser preferred an appeal against the order set ting aside the sale and also sought stay of further proceed ings for re sale.
The High Court did not grant stay but only ordered that the fresh sale shall not be confirmed till the disposal of the appeal.
Fresh auction was held and sale was knocked down in favour of Ramnarayan, the second purchaser.
The appeal of the first purchaser was subsequently allowed by the High Court and the first sale in his favour was confirmed.
Both Maganlal and Ramnarayan have filed two separate appeals in this Court challenging the order of the High Court.
Maganlal made an application before this Court under Order 34 Rule 5 of the Code, being C.M.P. No. 9940 of 1982, for redemption of the mortgage, and has urged that in case C.M.P No. 9940 of 1982 is allowed, it would not be neces sary for him to press the merits of the appeal.
This conten tion has not been seriously disputed by the first and the second purchasers.
They have however opposed this applica tion on the ground that: (i) an order of sale of the mort gaged property passed 697 by the District Judge under section 32 of the Act after affecting an attachment under section 31 thereof will not come within the purview of a final decree for sale of mort gaged property contemplated by Order 34 Rule 5 of the ' Code and as such the benefit of that provision could not be extended to Maganlal; (ii) the High Court having confirmed the sale in first purchaser 's favour, an application under Order 34 Rule 5 of the Code is not maintainable inasmuch as the said provision contemplates payment 'on or before the day fixed or at any time before the confirmation of a sale '; and (iii) section 32(8) of the State Finance Corporation Act makes the manner provided in the Code applicable only "as far as practicable" and there was neither a decree nor was the Financial Corporation a decree holder in a suit for sale it was only deemed to be a decree holder by legal fiction because of the expression "in execution of a decree as if the Financial Corporation were the decree holder".
On the other hand, it is contended on behalf of Maganlal that (i) Order 34 Rule 5 of the Code is attracted even to an order of sale of mortgaged property passed under section 32 of the Act and since the right of redemption which vests in Maganlal has not yet extinguished in view of the pendency of these appeals, there is no impediment in the relief contem plated by Order 34 Rule 5 of the Code being granted.
and (ii) in view of sub section (8) of section 32 of the Act the applicability of the provisions of Order 34 Rule 5 of the Code cannot be denied to the facts of the instant case.
Allowing the CMP and the appeal filed by Maganlal and granting consequential reliefs to the first and the second purchasers, this Court.
HELD: (1) In case the provisions of Order 34 Rule 5 of the Code are held to be applicable to the facts of the instant case, appropriate relief can be granted thereunder as the order of confirmation of the sale passed by the High Court in favour of the first purchaser has not become abso lute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extin guished.
[707F G] Chandra Mani vs Anarjan Bibi, A.I.R. 1934 P.C. 134; Nilayam Ramkrishan Rao vs Kandokari Chellayamma & Anr., ; ; S.V. Ramalingam & Ors.
vs K.E. Rajagopa lan & Ors., ; M. Sevugan Chettiar vs V.A. Narayana Raja, A.I.R. 1984 Mad 334; Raghunath Singh & Ors.
vs Pt.
Hansraj Kunwar & 698 Ors., A.I.R. 1934 P.C. 205 and Mhadagonda Ramgonda Patil & Ors.
vs Shripal Balwant Rainade & Ors., , referred to.
(2) An application under section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property.
On the other hand, the substantive relief in an application under section.31(1) is something akin to an application for at tachment of property in execution of a decree at a stage posterior to the passing of the decree.
[710E F] Gujarat State Financial Corporation vs M/s Natson Manu facturing Co. (P) Ltd.; , and M/s Everest Industrial Corporation & Ors.
vs Gujarat State Financial Corporation, ; , referred to.
(3) The purpose of enacting sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recov ery of the dues of the Financial Corporation.
This purpose however was, in cases covered by clause (a) of sub section (1) of section 31, confined to the stage of obtaining an order asking to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance" could be sold.
Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (a) of sub section (1) of section 31 could he sold.
After this stage was reached, sale in execution of an order under section 32 of the Act was for purposes of execution put at par with sale in execution of a decree obtained in a suit, by enacting sub section (8) of section 32 of the Act.
[711H 7 12B] (4) If in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the Code for execution of a decree for sale of such properties as are referred to in clause (a) of sub section (1) of section 31 of the Act, it would have made some provi sion analogous to provisions contained in the enactments for revenue recovery.
But that was not done.
Instead, sub sec tion (8) was incorporated in section 32 of the Act.
[712F] (5) As is apparent from the plain language of section 32(8) of the 699 Act, the legal fiction was created for the purpose of exe cuting an order under section 32 of the Act Tim ' sale of attached property as if such order was a decree in a suit for sale and the financial Corporation was the decree holder whereas the debtor was the judgment debtor.
[714B] It is settled law that a legal fiction is to he limited to the purpose for which it was created and should not he extended beyond the legitimate field.
[713H] The Bengal Immunity Company Ltd. vs The State of Bihar & Ors., ; East End Dwellings Company Ltd. vs Finsbury Borough Council, [1952] Appeal Cames 109; The Commissioner of Income tax, Bombay vs Amarchand N. Shroff, [1963] Supp.
1 S.C.R. 699; Commissioner of Income Tax, Gujarat vs Vedilal Lallubhai, ; and Nation al Sewing Thread Co. Ltd. vs Jamesh Chadwick & Bros. Ltd., ; , referred to.
(6) The provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order 21 of the Code including the right to file an appeal against Such orders passed during the course of execution which are appealable shall apply mutasis mutandis to provisions of an order under section 32 of the Act unless such provision is not practicable to he applied.
[714C] (7) Since, in the instant case, the equity of redemption has not extinguished, there is no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under section 32 of the Act, the provision contained in Order 34 Rule 5 of the Code shall not apply.
Nothing has been brought to the notice of the Court as to how and why it is not practicable to apply the said provision.
[7 14F]