S. DASARADHA RAMA REDDI, J.

( 1 ) THE question that arises in this revision petition is whether petition under section 47 of the Code of Civil Procedure lies to set aside an auction which was held and confirmed in execution of a decree in the absence of any application under Order 21 Rule 89 of the Code of Civil Procedure. The petitioner decree holder was the highest bidder in the auction of the property held on 11-7-1988 in execution of decree dated 3-3-1987 in O. S. No. 361 of 1986 on the file of Principal District Munsif, Proddutur, obtained against first respondent-judgment debtor and his elder brother in respect of certain transactions carried on for the benefit of joint family of first and second respondents. The first respondent judgment debtor filed E. A. No. 572 of 1989 on 7-11-1989, under Section 47 of the Code of Civil Procedure to set aside the sale which was confirmed on 26-9-1988 on the ground that property is not joint family property but belongs to the first respondent and his father-in-law. The lower Court overruling the objection of the decree holder that the judgment debtor having not filed any petition under Order 21 Rule 89 cannot file this petition under Section 47 to set aside the sale, held on merits that the property is not joint family property of the respondents and accordingly allowed the E. A. Challenging this order, the decree holder has preferred this revision petition.

( 2 ) SRI R. V. Nagabhushana Rao, learned counsel for the petitioner, submits that the petition filed under Section 47 is not maintainable since neither claim petition under Order 21 Rule 58 nor petition to set aside the sale under order 21 Rule 89 was filed. In support of his contention, he relies on a decision of the Supreme Court in Ganpat Singh vs. Kailash Shankar. He submits that as sale was confirmed, the question of setting aside the same does not arise. On the other hand, Sri M. N. Narasimha Reddy, learned Counsel for the respondents relies on decision of the Supreme Court in Ramanna vs. Nallaparaju and a decision of the Himachal Pradesh High Court in Jaunda Ram vs. Dola ram.

( 3 ) ORDER 21 Rule 89 enables any person claiming interest in the property sought to be sold in execution, to file application to set aside the sale while under Order 21 Rule 90, decree holder or purchaser or any other person entitled to a share in the distribution of assets may apply to the Court to set aside the sale on the ground of any material irregularity or fraud in publishing or conducting it. Section 47 of the Code of Civil Procedure reads as follows:"47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by Amendment Act 1976 w. e. f. 1-2-1977 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court. "in Ganpat Singh vs. Kailash Shankar (1 supra), the facts are as follows: on 2-1-1979, while dismissing an application by one of the judgment debtors under Order21 Rule 90 thecourt confirmed the sale. Another judgment-debtor filed a petition on 27-1-1979 to set aside sale on grounds other than those mentioned in Order 21 Rules 89, 90 and 91 of the Code of Civil Procedure. The same was dismissed by the trial Court on 21-7-1979 on the ground that after confirmation of sale, the Court is not authorised to entertain an application. The Supreme Court on those facts held that there is no provision in the CPC except Order 21 Rules 89, 90 and 91 to set aside the sale and that when an application for setting aside the sale is dismissed, the order of the court will be final subject to appeal and that when no appeal has been filed another application for setting, aside the sale cannot be made, as such an applic

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