Sidelights On 'Contempt'

(T.G. John, Advocate, Trichur)

"The Karachi Bar Association has learned with great regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Refique, Barrister-at-Law, and to an outstanding member of (his Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the courts will be undermining the foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949, at a meeting of the Karachi Bar Association, the above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949, the "Dawn", a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the court. Tyabji, C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument or expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot, C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Syed Ahmed Refique, the President of The Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his judgment in Reg v. Gray (1900) 2 Q.B. 36). It has been made clear by his Lordship that any act done or writing published calculated to bring a court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of mat class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In AIR 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court Judgment in E.M. Sankaran Narnboodiripad v. Narayanan Nambiar (1970 K.L.T. 588), Hidayatulla, C.J. observed; "The spirit underlying Article 19(1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactment upto 1971. It would have been highly salutory that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.

The Japanese Doll

(By T.G. John, Advocate, Trichur)

Major Gurbaksh Dhillon was an army officer of great distinction who received his training at Sandhurst and saw active service in 1945 on the Burma Front against the Japanese. The major had lost an eye in the battle but this was cleverly replaced by a glass eye. The loss of an eye however made him unfit for active service but in view of his past record he was not discharged or pensioned off but was retained in a semi-military position as the supervisor of Ordinance factories.

Major Dhillon was tall, fair, well built, always clean-shaven and remarkably handsome even at 40. His semi-civilian job in the capital gave him plenty of lesiure and he took membership in a club which was a high class aristocratic gathering. The affluence of the club and its members was manifest not only from the large cluster of shining limousines parked outside and attended to by an army of smart leverlied chuffeurs, but also from its gleaming furniture of fittings, its very fine gardens and well kept lawns. Major Dhillon was in his elements at the club for not only could he drink whisky like a fish, smoke like a chimney and play bridge and poker till late at night, but he could talk for hours together about his exploits in the many wars he had wethered. Gradually, he began to win the admiration of high society women folk at the club and men became envious of his great alacrity in winning the favour of women and called him the lady-killer.

Major Dhillon was particularly familiar at the club with the family of the Syals-Sardar Pritam Singh Syal and his wife Mohini Syal. Pritam Singh was one of the richest men in Delhi but at the age of 35, triggered by wine, women and riches he had become a huge loathsome bundle of flesh, stupidity and ego, fit for only bouts of booze and debauchery. On the other hand, Mohini was chic and charming as a Japanese doll with chiselled features and a figure that likened her to venues de Medicz by Michaelangelo. She was a graduate with refined manners and she was always dressed to kill. The major with all his fighting records surrendered to this beautiful woman with captivating charms.

Before long the blue Mercedes car of the major became a constant sight in the afternoons in the portico of Syal's bungalow. Gossip took wings and reached the ears of Pritam Singh between his bouts of booze and debauchery. He stopped taking Mohini to the Club and warned the major that he would shoot him down if ever the major was found in this precincts of his house. To watch Mohini more closely, Pritam Singh himself stopped going to the club and his orgies of drink and debauchery were carried on in his own house to his satisfaction and he took sadistic pleasure in his wife witnessing it.

Several months elapsed. The blazing heat of the summer was followed by the deluge of the rainy season and soon autumn arrived the season of mellow fruitfulness and fragrances. It was Diwali day and crackers were exploding everywhere. From Pritam Singh's house also the sound of crackers were heard thoughout the evening. At about midnight three loud explosions rang out from inside after which there was silence.

Next morning Pritam Singh was found dead in his house. The floor was littered with bottles of whisky and rum and broken glasses. There were two wounds on his body and a pistol which was identified as Pritam's was lying close to him and from all appearances it seemed to be suicide. The first jolt was however given by the postmortem report. The fatal bullet which had penetrated the heart seemed to be different from the second bullet which had penetrated the right thigh. The fatal bullet from its diameter, weight, and groove markings appeared to the investigating officers as one ejected from a military service revolver. The problem for investigation was this - Two empty shells had been ejected form Pritam Singh (automatic pistol) but only one was found on his body. Where had the second bullet gone? The answer to the question was found by the police when they throughly searched the rooms. The second bullet was found embedded in the wooden door near the entrance.

The fatal bullet having been ejected from a military service revolver and Major Dhillon's entalglements with Pritam's family well known in the locality, the police arrested Major Dhillon on suspicion. On being interrogated by the Police the major made a clean breast of the whole matter.

That he loved Mohini Syal like a sister and was still wearing a 'Raksha' from her on his wrist and that nothing obscene or objectionable had taken place between them. On account of scandals and Pritam's suspicion, she was virtually a prisonerin the house. Mohini was much upset by all this and she implored him through letters to come to the house and reclaim her husband from the depth of degradation to which he was sinking by this nightly orgies in his own house. At first he hesitated but finally he acceded. On Diwali Day, he went to the house of Pritam Singh where he expected to find Pritam alone, Mohini having gone to her parents for the festivity. The major had armed himself with a service revolver knowing that Pritam Singh was a dangerous rogue. Pritam Singh at the sight of the major accosted him in a fit of rage, 'you lewd wretch, I will teach you a lesson' and took out a pistol and immediately fired at the Major. The shot missed the mark because Pritam was fully drunk and the recoil of the weapon threw it down on the floor. Thereupon the major took his own revolver and shot him with the precision of a military veteran. Pritam Singh lurched forward and slumped on the floor and the pistol in his hand went off again by the shock of his fall thereby causing the wound on his leg.

Major Dhillon was sent up for trial on a charge of murdering Pritam Singh Syal but was acquitted on the plea of the right of self defence, since there was clear evidence that Pritam Singh fired the first shot.

Arsenic and Old Lace

(T.G. John, Advocate, Trichur)

Arsenic is the poison most often used by murderers because if it is administered in small but regular doses, it produces a condition which looks like normal illness, Frustrated lovers, anxious heir-at-laws impatient to succeed to rich estates—all have adopted this 'modus operandi'. But many cases of poisoning with arsenic have been detected because of certain peculiar properties of this 'King of poisons'.

Arsenic has a big disadvantage; traces of it can be found in the corpse or in the ground surrounding the grave for years afterwards. Prussic acid, yellow phosphorous, and morphine disappear fairly rapidly but arsenic always remains to give evidence against its user. Science can indicate from the contents of the stomach, the condition of the hair or the nails of a corpse just when arsenic was administered. And that takes us to the story of Harold Greenwood who in 1920 was accused of murdering his wife by poisoning her with arsenic.

Harold Greenwood was a rich solicitor in the village of Kidwelly, in Carmarthenshire, He had very lucrative practice and his wife Mabel was the sister of a former Lord Mayor of London. But Mrs. Greenwood was an invalid. Harold was a philanderer with many affairs and there was widespread gossip in the village of Kidwelly about his infidelities. Mrs. Greenwood was well liked about the fact that she was an invalid caused special sympathy.

And then if happened. Quite suddenly Mabel was taken ill and after twelve hours of vomiting, she died. The death did not by itself arouse any suspicion in the minds of the rustics of Kidwelly. But when just within two weeks of his wife's death Harold began chasing woman, they opened their eyes. And when four months later he remarried, the villagers of Kidwelly began 'to talk'.

The village gossip started which eventually reached the ears of the police and led to the exhumation of Mrs. Greenwood's body, ten months after her death: Science found one grain of arsenic had been administered within twenty-four hours of her death.

Trial followed. The tempestuous oratory of the defence counsel, Sir Edward Marshall Hall, rocked the court hall, baffled the prosecution and left the jury gasping. The counsel was able to throw some doubt on the cause of death, partly because the village doctor said at the inquest that he had given Mrs. Green wood morphine pills. The doctor had not done anything of the sort but when he retracted the statement and said he meant opium pills which contain some morphia, the damage was done.

Several wild theories were also put forward by the defence. It was suggested that Mrs. Greenwood had inhaled arsenic from roses which had been sprayed with insecticide: Further suggestion was that she might have eaten gooseberries for dinner sprayed with the same fatal insecticide: The last suggestion was that she had been using arsenic in certain cosmetic preparations. There was no evidence to support these theories.

It is always dangerous in poison cases for the prosecution to allege that the poison was administered by a particular means. And this blunder, the prosecution committed in the Greenwood's case. The prosecution pinned its faith to the bottle of burgundy from which Mrs. Greenwood had drunk at lunch on the day before her death. They proved Harold Greenwood had arsenic in his possession, but they were wrong when they said that nobody else had drunk the wine except the dead woman. Somebody else had and somebody else said so.

The verdict of the Jury was "We are satisfied that a dangerous dose of arsenic was administered to Mabel Greenwood on Sunday 15th June 1919. We are not satisfied that this was the cause of death. We say not guilty."

Harold Greenwood left the dock a free man!

Is a Notice of Demand u/S.138(B) of the N.I. Act Given by An Advocate Valid or Sufficient

(Joseph Thattacherry, Advocate, Changanacherry)

It is the common practice among advocates to issue notice to others under instructions from their prospective clients to the opposite parties. Now, the question discussed herein is about the legality of such a notice given by an advocate making a demand for payment of cheque amount from the drawer of a dishonoured cheque u/S.138(b) of the N.I. Act as amended by Act 66/88 (hereinafter referred to as the Act).

S.138 of the Act is undoubtedly a penal provision and as such it is settled law that its provisions have to be strictly complied with, in order to make the drawer of a dishonoured cheque criminally liable. S.138 of the Act mandates that "nothing contained in this Section shall apply unless" Clauses (a), (b) & (c) are complied with. (emphasis supplied).

In order to make the drawer liable all the above conditions precedent, have to be complied with. The mandatory nature of the section gives no choice to the courts to show any laxity in the non-fulfilment of the above conditions.

Clause (b) of S.138 of the Act requires the fulfilment of some pre-requisite conditions in order to make the section applicable. One among those conditions is that the payee or the holder in due course, of the cheque should make a demand for payment of the cheque amount. From a reading of clause (b) it is crystal clear that the notice of demand should be made by the payee or the holder in due course as the case may be (emphasis supplied) and not by anybody else. That is the clear intention of the Parliament. Had its intention been otherwise, it would have employed the words "or by anybody or his behalf" or likewise, as we find in S.106 of the Transfer of Property Act, where the notice of termination of the lease has to be given by the lessor or the lessee. The section further says that every notice under this section must be in writing signed by or on behalf of the person giving it". Since such a provision is conspicuiously absent in S.138(b) of the Act no court can supply such words enabling other persons also to give notice on behalf of the payee or holder in due course, which the Parliament in its wisdom has deliberately omitted to insert. Any construction or interpretation by adding new words to payee or holder in due course so as to enable other persons also to issue notice, especially when it is prejudicial to the interest of the drawer accused, is unwarranted. When the Parliament has categorically specified that the payee or the holder in due course as the case may be has to make the demand by giving notice in writing to the drawer in order to make S.138 applicable, if any other person makes the demand by giving notice such a notice does not conform to the provisions of law and is invalid and S. 138 will not apply.

Similar words are used in S.142 of the Act. Therein Clause (a) says that no court shall take cognizance of any offence punishable under S.138 except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque. Interpreting the clause Hon'ble Mr. Justice Pratap Singh of the Madras High Court held in 1994 (2) KLT SN Case No.23 at page 17, that a manager or any person authorised by the company can represent it and file a complaint. But the very same Judge after further consideration of the section subsequently in a case reported in 1995 (1) KLT SN Case No.19 at page 14 took an opposite view. In that case, the Manager of 4 Companies filed 3 complaints as a person duly authorised by the company to file the complaints. In that case, the court held "in as much as he is not the payee or holder in due course of the cheque he cannot file these complaints as per the provisions of the Act. Thus a person who is competent to file the complaint under S.138 of the Act must be payee or holder in due course. By no stretch of imagination, it can be stated Selvamany who is the Manager of the Company is the payee or holder in due course". Hon'ble Mr. Justice Narayanan Nambiar held as reported in 1996 (1) KLT 398 that "a combined reading of the provisions of S.138 and 142 of the Act will make it clear that it is only the payee or holder in due course who can file a complaint". It was a case in which the son of the deceased payee filed 3 complaints under S.138 of the Act, in his capacity as the executor of the will of his father. The complaints were quashed on the ground that the complaints were not made by the payee or holder in due course. So, in the light of the above decisions the words payee or holder in due course used in S.138(b) also cannot be construed so as to include anybody else other than the payee or holder in due course. Hence, it is submitted that a notice of demand given under S.138(b) by an advocate under instructions by a client is not in compliance with the provision and is invalid and insufficient. As such S.138 of the Act will not apply.

S.198, 198(A), S.199 of Cr.P.C. say that no court shall take cognizance of offences described therein, except upon a complaint made by the person aggrieved by the offence or by same persons specified therein or with the leave of the court by some other persons. Thus, with the leave of the court only can a complaint be instituted by somebody else other than person mentioned therein. So, wherever the Parliament permits persons other than the aggrieved party, it does so in so many words. So long as it is not done in respect of persons end tied to issue notice Under S.138(b) the restricted meaning above should be given. However no leave of the court could be obtained while giving a notice of demand. So a notice of demand should be given by the payee or holder in due course alone.

In 1993 (2) KLT 698 the question raised was "can the payee or holder in due course of a cheque file a complaint in court as per S.142 of the NI Act, through his power of attorney holder. Hon'ble Justice Mr. K.T. Thomas held that be can. One of the reasonings is that a power of attorney holder can do everything empowered by the donor, except where the acts to be performed is personal in character. Here in the case of a notice under S.138(b), the right to demand and to receive the cheque amount is indeed a persona] right. So that reasoning is not applicable in the case of a notice of demand. Another reason was that if the payee or holder in due course falls ill before the stipulated period or if he has to leave the station owing to unavoidable reasons, it would not be in the interest of justice to construe the provision as constraining a restriction that the complaint should be made by the payee or the holder in due course, as the case may be, personally. But such considerations has no relevancy or application in the case of a notice of demand by the payee or holder in due course to be issued personally. Because even in his sick bed at home or in I.C. unit, either illiterate or incapacitated, he could very well affix his signature or thumb impression in a notice of demand in his own name but written by somebody else. Again even if he is abroad he could easily send a telegram or fax a message demanding payment, so that it would reach the drawer within hours. Hence, the reasonings in support of holding that the power of attorney holder is also competent to file a complaint in the interest of justice, will not hold good in the case of a notice of demand under S.138(b) issued by anybody other than the payee or holder in due course. The observation in the decision that a complaint can be filed by an agent is only obiter dicta. Its various aspects and impacts were not considered in the judgment. If that be so any person could easily claim that he is an agent of the payee or holder in due course, the only restriction being that he should be a major and of sound mind. If an advocate could issue a valid notice of demand, why not his clerk or his office typist could also issue such a notice of demand. Such a situation was never intended by the Parliament.

Assuming that a donee of a power of attorney of the payee or holder in due course could validly issue a notice of demand, since the advocate who issues such a notice is not a power holder of the payee or holder in due course, notice issued by him is invalid and not in conformity with Clause (b) of S.138 of the Act. Hence, S.138 of the Act will not apply if a notice of demand under S.138(b) is not given by the payee or holder in due course. There is no difficulty for an advocate to prepare a notice of demand in the name of the payee or holder in due course himself and ask him to sign and send it to the drawer of the cheque - that bounced in strict compliance with the provision of law.

Right of Redemption of Mortgage u/S.60 T.P Act and Order XXXIV of the Code of Civil Procedure - A Case Study

(By M.R. Parameswaran, Advocate, Ernakulam)

The right to redeem a mortgage until the same is extinguished either by act of the parties or by decree of the Court is a right of a mortgagor statutorily recognised, by S. 60 of the Transfer of Property Act (IV of 1882). The right is also referred to as the "equity" of redemption in English law but strictly not applicable in India-vide AIR 1959 Patna 153 (FB). In Pattabhiramier v. Venkatarow Naicken (71) 13 Moo. Ind. App 560 their Lordships of the Privy Council held that the English Doctrine of "The Equity of Redemption" was unknown to ancient law in India. In England an English Mortgagee became "at law" the "absolute owner" of the property after the lapse of the time fixed for payment of the mortgage amount. But the equity courts held that the transaction is to be treated merely as a loan borrowal and as such, time is not of the essence of the contract and allowed the mortgagor to redeem, even after the period stipulated. Since the mortgagor was allowed to redeem in equity it is called the "equity of redemption". Lord Haldane L.C. in Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd. (1914) 83 LJ Ch. 79, stated the history of the Equity of Redemption. The jurisdiction of the court of equity to set aside the legal title of a mortgagee and compel him to - reconvey the land on payment of the principal, interest and costs is a very old one owing its origin to the influence of the church in the courts of the early Chacellors. The famous assembly of Exclesistics condemned usurers and laid down that when a creditor has been paid his debt, he should restore his pledge and the courts of Chancery should at an early date exercise jurisdiction 'in personam' over mortgages. The power was only a special application of a general power of relieve against penalities and to mould them into mere securities. In a common law mortage, land was conveyed to the creditor on condition that if the money advanced was repaid on the date and place named the property will revert back to the mortgagor, but on breach of the condition he will lose it forever. This hardship was that the debt still remained unpaid and could be recovered. Thus to relieve against this virtual penalty, equity compelled the creditor to use his legal title as a mere security. The equity of redemption was thus treated as an 'estate in land' capable of being transferred and attached.

In 1958 KLJ 78, it was held that S. 60 T.P. Act confers a substantive right on the mortgagor to redeem the mortgage. In (11) 9 Ind. Cases 513 (FB) the Madras High Court took the view that it is a 'right' to be enforced and not a 'liability' which he may be compelled to be discharged. The right conferred by the section consists of three parts. On payment of the mortgage money after it has become clue, to require the mortgagee (a) To deliver to the mortgagor the mortgage deed and all documents relating to the property in his possession; (b) if the mortgagee is in possession to deliver to him, and (c) to retransfer in property at the cost of the mortgagor to him or such other person as directed by him and where the mortgage is registered, to get a registered acknowledgement that any right in derogation of his interest transferred to the mortgagee has been extinguished. On receipt of the mortgage money if the mortgagee does not perform any of the above said acts the mortgage will not continue but the mortgagor gets a new right to have his demands enforced through court (AIR 1963 SC 1041)

In places where T.P. Act is in force, the courts will apply the principle adumbrated under the S. 60 in accordance with justice, equity and good conscience. In other words, rules of English law are to be followed whenever found applicable to Indian conditions (AIR 1953 SC 1) & (ILR 1966 2 Kerala 388). In Travancore before the Act was extended the principle of this section was applied on that basis (AIR 1955T.C. 130).

Right to Redeem What is?

It means the right to buy back or set free by payment. (1963 AIR SC 1041). A suit to enforce this right is called a suit for redemption. The right arises when the Principal money becomes 'due'. Before the T.P. Amendment Act, 1929 the word used was 'Payable'. There was divergence of judicial opinion among the courts in India as to whether the right to redeem accrues before or only after the expiry of the period stipulated. Now by the decision of the Supreme Court in AIR 1958 SC 770 this controversy is set at rest and the position in law is that ordinarily, the right arises only after the period but parties can make provision for discharge of the debt and recovery of property before. The right to 'foreclose' and 'redeem' are held co-extensive and said to arise simultaneously ie., if the mortgagee has no right for the mortgage money neither was the mortgagor entitled to sue for redemption. (1964 KLT 153).

How Right of redemption is exercised?

On 'Payment' or 'tender' of mortgage money at the proper time and place the right is exercised. It is the right to pay and not actual payment that is the criterion.

The right of redemption when extinguished?

It is by act of parties or by a decree of court. By act of parties it means a 'release' of the right by the mortgagor. The act of parties must be an act independent-of the mortgage and not part and parcel of it. Otherwise, it will be a clog on redemption and as such void. A purchase by the mortgagee at a court sale of the property also will extinguish the right, (a) A mortgagee can obtain a decree on the mortgage and at the sale in execution thereof purchase the property with the leave of the court, (b) obtain a decree on a money claim unconnected with the mortgage at the sale in execution of such a decree purchase the property with the leave of the court, and (c) Purchase without such leave where the property is brought to sale in execution of a money decree by a third party against the mortgagor. In ILR 16 Cal 682 (Mahabir Prasad v. Macnaghten) their Lordships of the Privy Council held that the position" of a mortgagee purchaser at court sale is the same as that of a stranger and he gets an irredeemable title and that the equity of redemption is extinguished. The same view is taken by the Supreme Court in AIR 1961 SC 1353 also.

Extinguishment of the right to redeem by a decree of court is by a final decree in a foreclosure suit under O. XXXIV, R. 3 of theCivil Procedure Code, 1908 or by a final decree in a redemption suit under O. XXXIV R. 8 of the Code. O. XXXIV, R. 5 of the Code of Civil Procedure 1908 deals with the final decree in a suit for sale. The mortgagor has a right under this provision to pay the mortgage money interest and costs, plus five percent of the purchase money to be paid into court before confirmation of sale and redeem the mortgage. The said provision is admittedly available under the Central Act as amended by Act 104 of 1976.

The said provisions dealing with the substantive right of redemption of the mortgagor under S. 60 of the T.P. Act though in a procedural form as has been the subject of various decisions of our High Court and the Supreme Court. In AIR 1988 Supreme Court 1200 (Mahadagonda Ramgonda Patil and Ors. v. Shripai Balwant Ranade and Ors.) while considering (lie right of the mortgagor to tile a second suit for redemption the Hon'ble Court considered the scope and amplitude of O. XXXIV R. 5 CPC in detail. In (1995) 1 SCC 161 (New Kenilworth Hotels (P) Ltd. v. Ashoka Industries Ltd. & Ors.) the court considered and held that under S. 60 T.P. Act until confirmation of sale the mortgagor has a right to deposit the entire sale money and that the Court has a statutory duty to direct redemption of mortgage. (1989) 4 SCC 344 Maganlal v. Jalswal Industries Neemach was relied upon.

After the amendment of Code of Civil Procedure, 1908 by the C.P.C. Amendment Act 104/1976 O.XXXIV of the Code governing suits relating to Mortgages of Immovable Property contained the provision O. XXXIV R. 5 as follows:-

"5. Final Decree in suit for sale:- (1) Where on or before the day fixed or at any time before die confirmation of a sale made in pursuance of a final decree passed under sub-r. (3) of this rule the defendant makes payment into court of all amounts due from him under sub-r.(1) of R.4, the Court.shall,onapplicationmadebythedefendantinthisbehalf,passafinaldecreeor,if such decree has been passed, an order-

(a) ordering die plaintiff to deliver up die documents referred to in and, if necessary,-

(b) ordering him to transfer the mortgaged property as directed in the said decree, and also if necessary,-

(c) ordering him to put the defendant in possession of die property.

(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-r.(3) of this rule. the Court shall not pass on order under sub-rule (1) of this rule, unless the defendant in addition to the amount mentioned in sub-r. (1), deposit in court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into court by the purchaser.

Where such deposits have been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-r. (1) has not been made, the court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in the manner provided in sub-r. (l) of R. 4".

But subsequently, by the Kerala Amendment published in K.G. No. 46 dated 20.11.1990 the whole of O. XXXIV has been substituted. Unlike in the Central Amendment which contains provisions, for Preliminary Decree and Final Decree under Rr. 4 & 5 now there is only R. 3 which provides for a composite decree. R. 5 of the Central Amendment has been completely omitted in the Kerala Amendment. Is it a cassus omissus which could be supplied in an appropriate case by invoking S. 60 of the T.P. Act itself was one of the questions mooted before the Division Bench in C.R.P. No. 2340/1995 (Philomina Jose v. The Federal Bank Ltd. & Anr.). The Division Bench consisting of Hon'ble Justice P.K. Balasubramanian & K.A. Abdul Gafoor, J. considered the question and held that in the absence of a provision in the Amended O.XXXIV of the Code the right of redemption cannot be permitted to the defendant/ Judgment Debtor (Mortgagor). In that case, the facts are as follows :

Federal Bank Ltd. filed a suit for realisation of money by sale of the mortgaged under the equitable mortgage created in favour of the Bank to secure the liability. The 1st defendant was the principal debtor and defendants 2 & 3 are the guarantors/ sureties. The property mortgaged belonged to the 3rd defendant. It is the residential property of defendants 2 & 3 having an extent of 12 3/4 cents in a very important area in Mattancherry. Kochi. The suit was decreed on admission for realisation of a sum of Rs.20,000/- with 14% interest and cost charged upon the property by sale of the same. In execution of the decree E.P. was filed for realisation of a sum of Rs.29, 755-22Ps for sale of property. Pending execution Rs.17,400 was paid by the Judgment debtors. For the balance property was proclaimed and sold on 26.10.1994 and the same was purchased by third party for Rs.30,200/- The 3rd Judgment debtor who is the owner of the property mortgaged (the mortgagor) filed E. A. on 9/1/1995 by depositing the entire sale amount and 5% commission payable to the auction purchaser and prayed for setting aside the sale invoking her right to redeem the mortgage before confirmation of sale and also the inherent powers of the Court. Thus, O.XXXIV and S. 151 CPC were invoked. The decree holder contended that after the Kerala Amendment, O.XXXIV R. 5 as in the Central Act is not available and only provisions for setting aside the sale are either O. XXI R. 89 or 90 C.P.C. Auction purchaser also contested. The Court dismissed the petition accepting the same. Against that the Revision was filed. The learned Single Judge Justice K. Sreedharan, as his Lordship then was, before whom the matter came up for admission referred it to a Division Bench which ultimately confirmed the order of the Court below.

The property is worth Rs.15 lakhs now. The serious and irreparable prejudice and injury caused to the mortgagor who has the right to redeem the mortgage under S. 60 of the T.P. Act and O. XXIV R. 5 CPC as per the Central Act is now denied because the Kerala Amendment has not provided for the same. This requires consideration. Assuming in the Kerala Amendment there is an omission, as there was no amendment by Act 104/1996 to O. XXXIV CPC and thereafter the Kerala Amendment was made which is inconsistent with the Central Act, the Central Act provision should prevail as per S. 97(3) of the CPC Amendment Act 1976. Assuming that there is no express provision, since S. 151 CPC was also invoked the court could have very well permitted the mortgagor to invoke S.60 T.P. Act and permitted redemption. The question whether a separate suit for redemption will lie is academic since once the sale is confirmed the mortgage will be deemed extinguished. Hence, to avoid unnecessary hardship to mortgagors necessary amendments have to be made at the earliest in O.XXXIV C.P.C. in Kerala in this regard. If not the court will have to invoke S. 151 CPC read with S.60 T.P. Act to render substantial justice to parties, ex debito justitiae. This is only in consonance with the dictum laid down by the Supreme Court in New Kenilworth Hotels (P) Ltd, v. Ashoka Industries Ltd. & Ors. (1995) 1 SCC 161 that until confirmation of sale mortgagor has right to deposit entire sale money and court has a statutory duty to direct redemption of mortgage.