ALLOKAM PEDDABBAYYA AND ANOTHERversusALLAHABAD BANK AND OTHERS

                         [2017] 8 S.C.R. 121


          ALLOKAM PEDDABBAYYA AND ANOTHER                                A
                                  v.
               ALLAHABAD BANK AND OTHERS
                (Civil Appeal Nos. 2763-2764 of2008)
                           JUNE 19, 2017                                 B

          [RANJAN GOGOi AND NAVIN SINHA, JJ.I
       Transfer of Property Act, 1882:
       s. 60, Proviso - Operation of- Equitable mortgage ofproperty
 by Def No.3 and 4 in 1979 in favour of bank for a loan - Non- c
 payment of loan - Foreclosure suit by bank in 1987 for recove1y of
 loan by sale of mortgaged property - Property was auction sold in
 1993 in favour of Def No.2, auction purchaser - Plaintiffs-
 appellants stating to have purchased the mortgaged property in
 1985 filed suit for redemption of mortgage in 1999 - Suit decreed D
 by trial court but reversed in appeal by auction purchaser - Second
 appeal by plaintiffs dismissed - On appeal, held: Right to enforce a
 claim for equity of redemption is a statutory right under the Act - It
 necessarily presupposes the existence of a mortgage - The right to
 redeem can stand extinguished either by the act of parties or by
 operation of law in the form of a decree of the Court under the E
 proviso to s. 60 - In the instant case, plaintiffs lost the right to sue
 for redemption of the mortgaged property by virtue of proviso to
 s.60 when the mortgaged property was put to auction sale in a suit
·for foreclosure by bank and sale certificate was issued in favour of
 auction purchaser - Thus, there was no subsisting mortgage to be
                                                                          F
 redeemed on the date of filing of the suit by plaintiffs - Right to
  redemption could not be claimed in the abstract.
       s.91 - Rights under, of purchaser of equity of redemption -
 Held: Appellants being purchasers of equity of redemption can claim
 no better rights u/s. 9 I than what their predecessor-in-interest had
 u!s.60 - Their rights could not be any superior or separate from        G
 that of their predecessor-in-interest.
       Mortgage - Right of redemption - Waiver by conduct. -
  When - Suit property mortgaged by Def No.3 and.4 in 1979 in
 favour of bank for a loan - Non-payment of loan - Property was
                                                                         H
                                  121
122            SUPREME COURT REPORTS                       [2017] 8 S.C.R.


A auction sold by bank in 1993 in favour of Def No.2 - Plaintiffs
  stating to have purchased the mortgaged property in 1985 filed suit
  in 1994 seeking permanent injunction against Def Nos. 2 to 4 -
  Held: Bank was not impleaded as a defendant in this suit - Def
  No.2 made full disclosure in this suit about the mortgage, foreclosure
B suit flied by Bank, and the consequent auction sale - At this stage,
  sale certificate was not issued in favour of Def No.2 - However.
  plaintiffs did not take any steps to either amend the relief sought in
  the suit or seek redemption of mortgaged property by offering to
  deposit mortgage dues or even to set aside the auction sale u/Or.
  XXXIV, r.l, CPC- Thus, behaviour ofPlaintiffs raises issue of waiver
C by conduct w.r.t their right to redemption, notwithstanding the
  subsistence of the period of limitation to seek redemption - Limitation
  Act, 1963 -Art. 61 (a) - Code of Civil Procedure, 1908 - Or. XXXJV,
  r.l - Doctrine of Waiver.
            Code of Civil Procedure, 1908 - Or. XXXlV, r.8 - Non-
 o    applicability of- Held: Suit for redemption of mortgage by plaintijfs-
      appellants was misconceived as ulr. 8 the right to redemption
      survived only till confirmation of the sale and not thereafter - Suit
      was instituted by appellants in 1999 only after issuance of sale
      certificate in favour of Def No.2 and thus the question for
      redemption had become irrelevant.
 E
            Dismissing the appeals, the Court
         HELD: 1.1 The right to enforce a claim for equity of
   redemption is a statutory right under the Act. It necessarily
   presupposes the existence of a mortgage. The right to redeem
 F can stand extinguished either by the act of the parties or by
   operation of the law in the form of a Decree of the Court under
   the proviso to Section 60 of the Transfer of Property Act, 1882.
   The Appellants being purchasers of the equity of redemption can
   have or claim no better rights under Section 91, than what their
   predecessor-in-interest had under Section 60 of the Act. (Para 91
 G [129-E]
         1.2 The Plaintiffs preferred suit in 1994 claiming possession
   of the Suit lands, seeking permanent injunction against any
   interference by the Defendant No. 2 to 4 acting in collusion. The
   Bank was not impleaded as a party defendant. In his written
 H statement, Defendant No.2 made full disclosure about the
    ALLOKAM PEDDABBAYYA v. ALLAHABAD BANK                          123


mortgage, the Suit filed by the Bank, and the consequent auction A
sale. At this stage, sale certificate had not been issued in favour
of Defendant No.2. The Plaintiffs, despite the aforesaid, did not
take any steps to either amend the relief sought in the Suit, much
less seek redemption of the mortgaged property by offering to
deposit the mortgage dues or even to set aside the auction sale B
under Order XXXIV Rule 1, CPC. The Suit was dismissed
holding that the Plaintiffs had failed to establish possession and
in view of the order in the Suit for foreclosure filed by the Bank
culminating in the auction sale. The appeal arising from the same
was also dismissed. The behaviour of the Plaintiffs thereafter
 necessarily raises issues of waiver by conduct with regard to their C
 right to redemption as claimed notwithstanding the subsistence
 of the period of limitation to seek redemption. (Para 11( (129-G-
 H; 130-A-B]
       1.3 Sale certificate was issued to Defendant No.2 on
02.07.1997 followed by delivery of possession in Execution D
Petition in 1997. The objection of the Plaintiffs in Execution
Appeal was also rejected. Only thereafter the Plaintiffs instituted
suit in 1999 for redemption of the mortgage under Order XXXIV
Rule 1, CPC contending that they were willing to deposit the
mortgage dues and that the Decree in foreclosure suit filed by
the Bank was not binding on them because they had not been E
imp leaded as party in the same. In cross examination, the Plaintiffs
acknowledged having been informed by their lawyer at the time
of purchase, of the mortgage created by deposit of title deeds, by
Defendants 3 and 4. (Para 12] (130-E-FJ
        1.4 The decree for foreclosure in the foreclosure suit and F .
·the subsequent auction sale followed by issuance of sale
 certificate, extinguished the right to redemption by reason of the
 proviso to Section 60. The Plaintiffs having interest in the
 mortgaged property through their predecessor-in-interest
 (Defendant No. 3 and 4) and in the right to redeem the same G
 were competent to do so under Section 91 of the Act, but subject
 to the limitation under the proviso to Section 60. Their rights
  could not be any superior or separate from that of their
  predecessor-in-interest. If the right to redeem stood extinguished
  by operation of the law under the proviso to Section 60 of the Act
                                                                     H
124           SUPREME COURT REPORTS                     [2017] 8 S.C.R.


A     prior to the period of limitation, it cannot be contended that the
      right could nonetheless be enforced anytime before the expiry of
      limitation of 30 years. If there remained no subsisting mortgage,
      it is difficult to fathom what was to be redeemed. [Para 13[ [130-
      G-H; 131-AI
B        1.5 No challenge was laid out by the Plaintiffs in the suit
  filed in 1999, either to the auction sale or to set aside the sale
  certificate issued to Defendant No.2. The reliance upon Order
  XX.XIV Rule 1, CPC was completely misconceived as under Rule
  8 the right to redemption survived only till confirmation of the
  sale and not thereafter. The Suit was instituted only after issuance
C of the sale certificate and the question for redemption had become
  irrelevant. [Para 141 (131-BI
        1.6 The Plaintiffs lost the right to sue for redemption of
  the mortgaged property by virtue of the proviso to Section 60 of
  the Act, no sooner that the mortgaged property was put to auction
D sale in a suit for foreclosure and sale certificate was issued in
  favour of Defendant No.2. There remained no property mortgaged
  to be redeemed. The right to redemption could not be claimed
  in the abstract. [Para 231 1133-D-EI
           Nagubai Ammal & Ors. v. B. Shama Rao & Ors. AIR
E          1956 SC 593 : [1956) SCR 451; Mangru Mahto v. Shri
           Tahkur Taraknathji [1967) 3 SCR 125; Mhadagonda
           Ramgonda Patil & Ors. v. Shripal Ba/want Rainade & ·
           Ors. AIR 1988 SC 1200 : [19881 3 SCR 689 -
           distinguished.
F          Shivdev Singh v. Sucha Singh (2000) 4 SCC 326 :
           (20001 2 SCR 878 - held inapplicable.
           L.K. Trust v. EDC Ltd. (2011) 6 SCC 780 : (2011( 7
           SCR 569; Rukmini Amma & Ors. v. Rajeswary (dead}
           through LRs. (2013) 9 SCC 121 : [20131 5 SCR 579;
G          Embassy Hotels Pvt. Ltd. v. Gajaraj & Co. & ors. (2015)
           14 SCC 316; Mrutunjay Pani & Am: v. Narmada Bala
           Sasmal & Am: AIR 1961 SC 1353 : [1962) SCR 290;
           B. Arvind Kumar v. Government of India & Ors. (2007)
           5 sec 745 - relied on.
H
     ALLOKAM PEDDABBAYYA v. ALLAHABAD BANK                              125



      Mademsetty Satyanarayana v. G Yelloji Rao [1965]                  ·A
      2 SCR 221; Bhaiya Raghunath Singh & Ors. v.
      Musammat Hansraj Kunwar & ors. AIR 1934 PC 36;
      Pawan Kumar v. Jagdeo AIR 1947 Nagpur 210 -
      referred to.
                        Case Law Reference                              B
AIR 1934 PC 36                    referred to          Paras
AIR 1947 Nagpur 210               referred to          Para6
[1965] 2 SCR 221                  referred to          Para 11
·[2000] 2 SCR 878                 held inapplicable    Para 15
 (2011] 7 SCR 569                 relied on            Para 16
                                                                        c
[2013] S SCR 579                  relied on            Para 17
  c201s) 14 sec 316               relied on            Para 18
. (1962] SCR 290                  relied on            Para 19
(2007) s sec 745                  relied on            Para 20          D
 [19561 SCR 451                   distinguished        Para 21
 (1967] 3 SCR 125                 distinguished        Para 21
 [1988) 3 SCR 689                 distinguished        Para 22
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2763-
 2764 of 2008.                                                           E

      From the Judgment and Order dated 02.03 .2006 of the High Court
 of Andhra Pradesh at Hyderabad in SA No. 1603 of 2004 and SA No.
 1604of2004.
        Mr. B. Adinarayana Rao, Sr. Adv., G. Ramakrishna Prasad,         F
 Suyodhan Byrapaneni, Mohd. Wasay Khan and Ms. Filza Moonis, Advs.
 for the Appellants.
       Kailash Vasdev, Sr. Adv., Ms. Mukti Chaudhry, C. Mukund,Ashok
 Jain, Pankaj Jain, Bijoy Kumar Jain & Mohd. Faris, Advs. for the
 Respondents.                                                            G
        NAVIN SINHA, J. I. The Appellants' Suit 0.S. No.96of1999,
 for redemption of mortgage was decreed by the Principal Junior Civil
 Judge, Guntur. The decree was reversed in AS No.65 of 2002, appeal ,
 preferred by the auction purchaser, Defendant No.2, by the VIII
 Additional District Judge (FTC), Guntur. The Second Appeal by the
                                                                         H
126            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A Appellants against the reversal of decree has been dismissed. The parties
  shall be referred to by their respective positions in the Suit.
         2. Defendant Nos.3 and 4 created an equitable mortgage of their
  property at D.No.80 of Gorantala village, Guntur, measuring Ac 1-34
  cents (2000 sq.yds.) for a loan of Rs. I 0,000/- in favour of the Bank,
B Defendant No.I, by deposit of title deeds on 15.03.1979. The Bank
  instituted O.S. No. 68 of 1987 for recovery of the loan by sale of the
  mortgaged property. The property was auction sold on 05.09.1993.
  Defendant No.2 being the highest bidder at Rs.50,000/-, sale certificate
  was issued and he was put in possession on 02.07.1997 in Execution
  Petition No. 203 of 1997.
c
             3. The Plaintiffs were stated to have purchased the mortgaged
      property by different sale deeds dated 12.08.1985, 20.08.1985 and
      30.09.1985. Asserting possession, they preferred O.S. No.165of1994,
      seeking permanent injunction restraining Defendant Nos. 2 to 4 only
      from interfering with their peaceful possession. The Suit and the Appeal
D     A.S. No.67 of 1997, against the same were dismissed. Execution Appeal
      No.996of1997 preferred by the Plaintiffs in Execution Petition No. 203
      of 1997 was also dismissed. The Plaintiffs thereafter preferred O.S.
      No.96of1999 for redemption of mortgage under Order XXXIV Rule 1
      of the Code of Civil Procedure (hereinafter referred to as 'the CPC'),
 E    now impleading the Bank as Defendant also. The Suit was decreed on
      27.02.2002, but reversed in appeal by the auction purchaser, Defendant
      No.2 holding that consequent to the auction sale and issuance of sale
      certificate along with possession delivered, Defendant Nos.3 and 4 were
      no more the owners of the property, and there stood no debt to be
      redeemed on the date of filing of the Suit. The Plaintiffs were thus not
 F    purchasers of the equity of redemption, dismissing the Suit. The High
      Court in Second Appeal held that the right to redemption in the Plaintiffs,
      by stepping into the shoes of the Mortgagor under Section 59A of the
      Transfer of Property Act, 1882 (hereinafter referred to as 'the Act')
      stood extinguished in view of the final decree for foreclosure in O.S.
 G    No.68 of 1987 filed by the Bank, Defendant No. I, and the consequent
      sale certificate issued in favour of the auction purchaser, Defendant
      No.2.
          4. Sri B. Adinarayana Rao, Learned Senior Counsel appearing
   for the Appellants, contended that a purchaser of a mortgaged property
 H had the right to redeem the same either in whole or in part. The purchaser
     ALLOKAM PEDDABBAYYA v. ALLAHABAD BANK                                       127
                 [NAVIN SINHA, J.]

stepped into the shoes of his predecessors-in-title, and therefore, had A
 the same rights which his predecessor had in title before the purchase.
 The Plaintiffs having purchased the property and come in possession of
 the same, before institution of the Suit for foreclosure by the Bank or
 sale of the mortgaged property, had necessarily to be imp leaded as party
'defendants under Order XXXIV Rule I, CPC in such Suit. In absence B
 of the same, any decree passed in such a Suit was not binding on the
 Plaintiffs and does not affect their right to redemption. Once a mortgage
  is created, it remains a mortgage till such time that it is not redeemed.
  Under Section 91 of the Act, besides the mortgagor, any person who has
  interest in the property mortgaged or in the right to redeem the same can
  also sue for redemption. The Plaintiffs were, therefore, competent to c
  maintain the Suit. Reliance was placed on Nagubai Ammal & Ors. vs.
  B. Shama Rao & Ors., AIR 1956 SC 593, Ma11gru Malito vs. Shri
   Tahkur Taraknathji, ( 196 7) 3 SCR 125 and Mhadagonda Ramgo11da
   Patil & Ors. vs. Shripal Ba/want Rainade & Ors., AIR 1988 SC
   1200.
                                                                                 D
        5. It was further submitted that notwithstanding the Suit of the
 Bank having been decreed against Defendants 3 and 4, the rights of the
 Plaintiffs as purchasers of the equity of redemption remained unfettered
 under Section 60 and Section 91 of the Act till the expiry of the limitation
 period of 30 years. The Suit for redemption having been filed within
 limitation, no questions of equity arise in favour of the auction purchaser.     E
 There could be no clog on the equity of redemption and neither could
 waiver be infen-ed to defeat the right to redemption. Reliance was placed
 on Mademsetty Satyanarayana vs. G Yel/oji Rao, (1965) 2 SCR 22 I
 and Shivdev Singh vs. Sucha Singh, (2000) 4 SCC 326. The fact that
 earlier a Suit may have been filed seeking permanent injunction only             F
 was no bar to a subsequent Suit for redemption, as even a second Suit
 for redemption was not barred, relying on Bhaiya Raghu11ath Singh &
 Others vs. Musammat Ha11sraj K1mwar & ors., AIR 1934 PC 36.
         6. Sri Kailash Vasudev, Learned Senior' Counsel appearing for
  the auction purchaser, Defendant No.2, submitted that the sale in its           G
. favour stood concluded, sale certificate issued along with possession
  delivered, long before the Suit for redemption was filed. There existed
  no mortgage to be redeemed on the date of institution of the Suit. Referring
  to the proviso to Section 60, it was submitted that the right of redemption
  stood extinguished by reason of the Decree in O.S. No.68 of I 987 and
                                                                                  H
128            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A the consequent sale certificate. Reliance was placed on Mrutu11jay
  Pani & Anr. v. Narmada Bala Sasmal & Anr., AIR 1961 SC 1353,
  Mhadagonda Ramgonda Patil (supra) and B. Arvind Kumar v.
  Govemme11t ofbrdia & Ors., (2007) 5 SCC 745. Despite being aware
  of the mortgage and auction sale, the Plaintiffs did not take steps for
  redemption of the mortgage and offer to deposit the mortgage money at
B
  the first instance. O.S. No.I 65 of 1994 was filed seeking permanent
  injunction only, without even impleading the Bank as Defendant or
  questioning the auction sale much less the sale certificate. The Suit was
  not filed bonafide. The sale deed of the Plaintiffs did not mention the
  existing mortgage, despite tho::ir being aware of the same. Under Order
C XXXIV CPC, the mortgagor can offer to pay at any time but before
  confirmation of sale. The sale having been confirmed before institution
  of the Suit for redemption, no right of redemption of the mortgage
  survived. Reliance upon Order XXXIV CPC or Section 60 read with
  Section 91 of the Act, in the facts of the case, is misconceived. Reliance
D was placed on Pa wan Kumar v. Jagdeo, AIR 194 7 Nagpur 210. The
  auction purchaser has been in physical possession of the Suit property
  since 02.07.1997. The concurrent findings of two Courts, therefore, call
  for no interference.
         7. Learned Counsel for the Bank, Defendant No. I, adopting the
  arguments of Shri Vasudev, additionally submitted that it had not been
E imp leaded as a party in the Suit filed in 1994, and neither had the Plaintiffs
  at any time offered to deposit the money before confirmation of sale
  despite claiming to be in possession. The sale certificate was never
  challenged. It is not possible that they were unaware of the mortgage at
  the time of purchase.
F        8. ·we have considered the submissions on behalf of the parties.
      Sections 60 and 91 of the Act, in their relevant extract, read as follows:-
                   :~


              "60. Right of mortgagor to redeem:-
              At any time after the principal money has become due, the
G             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
H             thereof to the mortgagor, and (c) at the cost of the mortgagor
      ALLOKAM PEDDABBAYYA v. ALLAHABAD BANK                                129
                  [NAVIN SINHA, J.]

        either to re-transfer the mortgaged property to him or to such A
        third person as he may direct, or to execute and (where the
        mortgage has been effected by a registered instrument) to have
        registered an acknowledgement in writing that any right in
        derogation of his interest transferred to the mortgagee has been
        extinguished:
                                                                           B
        PROVIDED that the right conferred by this section has not been
        extinguished by the act of the parties or by decree of a court.
          xxx                    xxx                      xxx
        91. Persons who may sue for redemption
                                                                           c
        Besides the mortgagor, any of the following persons may redeem,
        or institute a suit for redemption of, the mortgaged property,
        namely,-
        (a) any person (other than the mortgagee of the interest sought
        to be redeemed) who has any interest in, or charge upon, the D
        property mortgaged or in or upon the right to redeem the same;"
       9. The right to enforce a claim for equity of redemption is a
statutory right under the Act. It necessarily presupposes the existence
of a mortgage. The right to redeem can stand extinguished either by the
act of the parties or by operation of the law in the form of a Decree of E
the Court under the proviso to Section 60 of the Act. The Appellants
being purchasers of the equity of redemption can have or claim no better
rights under Section 91, than what their predecessor-in-interest had under
Section 60 of the Act.
       10. O.S. No. 68of1987 preferred by the Bank for foreclosure of F
the mortgage, on failure of Defendants 3 and 4 to repay the loan, was
Decreed on 28.02.1991. The property was put to auction in Execution
Case No.197 of1991. Auction sale was held on 05.09.1993. Defendant
No. 2, was the highest bidder.
       11. The Plaintiffs then preferred O.S. No.165of1994 claiming
  possession of the Suit lands, seeking permanent injunction against any G
  interference by the Defendant No. 2 to 4 acting in collusion. The Bank
  was not impleaded as a party defendant. In his written statement,
  Defendant No.2 made full disclosure about the mortgage, the Suit filed
· by the Bank, and the consequent auction sale.At this stage, sale certificate
  had not been issued in favour of Defendant No.2. The Plaintiffs, despite H
130            SUPREME COURT REPORTS                         [20 l 7] 8 S.C.R.


A the aforesaid, did not take any steps to either amend the relief sought in
  the Suit, much less seek redemption of the mortgaged property by offering
  to deposit the mortgage dues or even to set aside the auction sale under
  Order XXXIV Rule 1, CPC. The Suit was dismissed holding that the
  Plaintiffs had failed to establish possession, and in view of the order in
  the Suit for foreclosure filed by the Bank culminating in the auction sale.
B
  The appeal,A.S. No. 67of1997 arising from the same was also dismissed.
  The behaviour of the Plaintiffs thereafter necessarily raises issues of
  waiver by conduct with regard to their right to redemption as claimed
  notwithstanding the subsistence of the period of limitation to seek
  redemption. In Madamsetty Satyanarayan (supra), on the issue of
c waiver it was observed as follows:-
             " .... But they must be such that the representation by or the
             conduct or neglect of the plaintiffs is directly responsible in
             inducing the defendant to change his position to his prejudice or
             such as to bring about a situation when it would be inequitable to
D            give him such relief."
             I2. Sale certificate was issued to Defendant No.2 on 02.07.1997
      followed by delivery of possession in Execution Petition No. 203 of 1997.
      The objection of the Plaintiffs in Execution Appeal No. 996of1997 was
      also rejected. Only thereafter the Plaintiffs instituted O.S. No. 96 of
E     1999 for redemption of the mortgage under Order XXXIV Rule 1, CPC
      contending that they were willing to deposit the mortgage dues and that
      the Decree in O.S. No. 68 of 1987 was not binding on them because
      they had not been imp leaded as party in the same. In cross examination,
      the Plaintiffs acknowledged having been informed by their lawyer at the
      time of purchase, of the mortgage created by deposit of title deeds, by
 F    Defendants 3 and 4.
         13. The Decree for foreclosure in O.S. 68 of 1987, and the
  subsequent auction sale followed by issuance of sale certificate,
  extinguished the right to redemption by reason of the proviso to Section
  60. The Plaintiffs having interest in the mortgaged property through
G their predecessor-in-interest and in the right to redeem the same were
  competent to do so under Section 91 of the Act, but subject to the
  limitation under the proviso to Section 60. Their rights could not be any
  superior or separate from that of their predecessor-in-interest. If the
  right to redeem stood extinguished by operation of the law under the
H proviso to Section 60 of the Act prior to the period oflimitation, it cannot
     ALLOKAM PEDDABBAYYA v. ALLAHABAD BANK                                    131
                 [NAVIN SINHA, J.]

be contended that the right could nonetheless be enforced anytime before A
the expiry of limitation of 30 years. If there remained no subsisting
mortgage, it is difficult to fathom what was to be redeemed.
       14. No challenge was laid out in O.S. No.96of1999, either to the
auction sale or to set aside the sale certificate issued to Defendant No.2.
The reliance upon Order XX.XIV Rule 1, CPC is completely misconceived B
as under Rule 8 the right to redemption survived only till confirmation of
the sale and not thereafter. The Suit was instituted only after issuance
of the sale certificate and the question for redemption had become
irrelevant.
      15. The issues regarding maintainability of a second suit for           c
redemption or clog on the equity of redemption are not relevant to the
present controversy and need not be deliberated upon. Shivdev Singh
(supra), therefore, has no relevance in the present context.
      16. The extinguishment of the right to redeem by virtue of the
proviso to Section 60 of the Act fell for consideration in L.K. Trust vs.     D
EDC Ltd., (2011) 6 SCC 780, observing as follows:-
        "55. Rejecting the appeal, this Court in Narandas Karsondas
        case has held that the right ofredemption which is embodied in
        Section 60 of the Transfer of Property Act is available to the
        mortgagor unless it has been extinguished by the act of the parties   E
        or by the decree of a court. What is held by this Court is that, in
        India it is only on execution of the conveyance and registration
        of transfer of the mortgagor's interest by registered instrument
        thatthe mortgagor's right ofredemption will be extinguished but
        the conferment of power to sell the mortgaged property without
        intervention of the court, in a mortgage deed, in itself, will not    F
        deprive the mortgagor of his right ofredemption ..... "
       17. The effect of the proviso to Section 60 again fell for
consideration inR11k111iniA111111a & Ors. vs. Rajeswary /dead} through
LRs., (2013) 9 SCC 121, wherein it was held:-
                                                                              G
        "29. In the above said background the factum of the filing of the
        suit nearly after 30 years of the mortgage was very relevant. If
        really the respondents were serious about the consequences
        which flowed from the public auction-sale or were really
        aggrieved of the sale effected under Ext. B-5, the respondents
        should have been prompt in taking any steps for redressal of H
132            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A            their grievance in order to save the property mortgaged. Having
             failed to evince any such keen interest in protecting their property,
             it is too late in the day for the respondents to have approached
             the Court at their own sweet will i.e. after nearly 30 long years
             of the mortgage and file a simple suit for redemption without
             taking any steps to question a sale which was effected by way
B
             of public auction .... "
             18. The extinguishment of the right to redeem under the proviso
      to Section 60 of the Act was again considered in Embassy Hotels Pvt.
      Ltd. vs. Gajaraj & Co. & ors., (2015) 14 SCC 316 observing as follows:
 c           "15 .... In such circumstances, in our considered view, the only
             option was to directly challenge the court auction of the suit
             property and the issuance of sale certificate. The learned counsel
             for the appellant has correctly submitted that as a result of
             judgment of this Court dated 20-2-1990 (P.K. Unni v. Nirmala
             Industries, 1990 (2) SCC 378) the order of the executing court
 D           dated 7-5-1983 got confirmed and the sale certificate obtained
             finality. As a sequel, the ownership of the suit property or at
             least a major part of it got transferred from the first defendant to
             the auction-purchaser the appellant. In such a situation, it is not
             possible to accept the contention on behalf of the plaintiff that
 E           the first defendant being a mortgagor will continue to have a
             right of redemption although the sale of mortgaged property to a
             third party through a court auction became final."
            19.In Mrutunjay Pani (supra), it was observed as follows:-
              "(1) The governing principle is "once a mortgage always a
 F            mortgage" till the mortgage is terminated by the act of the parties
              themselves, by merger or by order of the court.
              (2) Where a mortgagee purchases the equity of redemption in
              execution his mortgage decree with the leave of court or in
              execution of a mortgage or money decree contained by a third
 G            party, the equity ofredemption may be extinguished; and, in that
              event, the mortgagor cannot sue for redemption without getting
              the sale set aside ... "
            20. InB. Arvind Kumar (supra), the proviso to Section 60 of the
      Act fell for consideration and it was observed:
 H
     ALLOKAM PEDDABBAYYA v. ALLAHABAD BANK                                      133
                 [NAVlN SINHA, J.]

         " ... The proviso specifically says that the right of redemption A
         conferred on the mortgagor under Section 60 could be
         extinguished by the act of parties or by decree of the court. The
         sale deed was executed in favour of the auction-purchaser on
         10-11-1981 and the appellants in their suit for redemption had
         not obtained any interim order staying the operation of the auction- B
         sale or the execution of any sale deed and in the absence of (Sic
         thereof) such right ofredemption would be extinguished."
       21. In Nagubai (supra), the proviso to Section 60 of the Act did
not fall for consideration. Likewise? Mangru Mahto (supra) dealt with
Order XXXIV, CPC and Section 52AoftheActwithregard to a purchase                C
pendente lite which is again distinguishable.
       22. Ir• •~if1uuugonda Ramgonda Patil (supra), it was observed
that the mortgagor has a right of redemption even after sale has taken
place pursuant to the final decree, but before the confirmation of sale.
       23. The aforesaid discussion leads to the conclusion that the D
Plaintiffs lost the right to sue for redemption of the mortgaged property·
by virtue of the proviso to Section 60 of the Act, no sooner that the
mortgaged property was put to auction sale in a suit for foreclosure and
sale certificate was issued in favour of Defendant No.2. There remained
no property mortgaged to be redeemed. The right to redemption could
not be claimed in the abstract.                                            E
         24. We find no reason to interfere with the order of the High
Court.
         The appeals thus stand dismi_~sed.
                                                                                F
Divya Pandey                                               Appeals dismissed.