IMPORTANT POINTS
15 day’s notice for sale is to be counted from the date of order for proclamation of sale.
For setting aside the proclamation of sale the judgment debtor must establish that material irregularity or fraud has resulted in causing substantial injury to him in conducting the sale.

JUDGMENT :

Abhay Manohar Sapre, J.

1) This appeal is filed by the auction purchaser against the final judgment and order dated 23.12.2005 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Civil Misc. Appeal No. 1721 of 2000 whereby the High Court allowed the appeal filed by judgment debtor-respondent No.1 herein and set aside the order dated 20.04.2000 passed by the Senior Civil Judge, Kovvur in E.A. No. 1020 of 1999 in E.P. No. 46 of 1998 in O.S. No. 192 of 1987 dismissing the application filed by the judgment debtor under Order 21 Rule 90 read with 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”).

2) Facts of the case need mention, in brief, to appreciate the controversy involved in this appeal.

3) Respondent No.2-State Bank of India is the plaintiff/decree holder whereas respondent No.1 is the defendant/judgment debtor in O.S. No.192 of 1987. Respondent No.2 obtained a money decree for Rs.5,15,390/-against respondent No.1 on 16.03.1998 in O.S. No.192 of 1987 for the loan given to her by respondent No.2 and which remained unpaid by respondent No.1. Since respondent No.1 failed to satisfy the decree, respondent No.2 filed execution application and brought the schedule property owned by respondent No.1-judgment debtor to auction sale through the process server of the Court of Senior Civil Judge, Kovvur, in execution proceedings in E.P. No. 46 of 1998 in O.S. No.192 of 1987 for realization of decretal dues.

4) The suit schedule property was, accordingly, attached by the executing Court under a warrant. Notice was, accordingly, issued to respondent No.1-judgment debtor in respect of the said executing proceedings on 14.07.1999 to which she filed counter affidavit raising certain objections. On 31.09.1999, the executing Court overruled the objections raised by respondent No.1 in her counter affidavit and fixed 22.09.1999 as the date of settlement of terms. On 22.09.1999, the terms of proclamation of sale were settled fixing the date for sale of the said property on 17.11.1999.

5) Pursuant to the above referred proceedings, proclamation of the sale was issued on 05.10.1999 by the executing Court under Order 21 Rule 64 of the Code mentioning therein the conditions of sale. Proclamation of the sale was entrusted to the Process Server of publication on 27.10.1999. The Process Server gave endorsement on 02.11.1999 that the sale proclamation was affixed to the house/suit schedule property and also by beat of tom tom near the property and also affixed the same on the notice board of the Court. On 04.11.1999, sale warrant was issued to the Bailiff to give 15 days’ notice by affixing the same in court house, making due proclamation of the suit schedule property. The proclamation of the sale was published in the newspaper on 05.11.1999 stating that the sale would be held on 17.11.1999.

6) On 17.11.1999, the property was brought to auction sale where 7 bidders participated. The appellant herein was the highest bidder of Rs.7,15,000/-. Out of the said bid amount, Rs.1,78,750/-was paid to the Bailiff. The Bailiff filed a return on 18.11.1999 about the sale stating that he published about sale by tom tom and the appellant was the highest bidder and the initial amount was deposited with respondent No.2-Bank after deducting poundage.

7) Dissatisfied with the auction, the judgment debtor filed an application under Order 21 Rule 90 seeking setting aside of the sale, inter alia, on the ground that the proclamation was done within 15 days and hence it is illegal, tom tom wala neither made proclamation and nor took neighbours’ signatures, proclamation was not published in Nagar Panchayat office, publication was defective in nature because it did not mention the valuation of the property etc. It was also objected that the Bank brought only three bidders whereas if more bidders had participated, the property put to sale would have fetched easily between 12 to 14 lakhs.

8) By order dated 20.04.2000, th