2009 Supreme(AP) 767
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
L. NARASIMHA REDDY, J.
Chirravuri Veerabhadra Rao – Appellant
Versus
State Bank of India, rep. by its Branch Manager, Seetanagaram, Rajahmundry and others – Respondents
CM.A.No. 2073 of 2001
Decided on : 3-11-2009.
M/s. N. Subba Reddy and R. Vijayanandan Reddy, Counsel for the Appellant.
Mr. Challa Danamjaya, Counsel for Respondent No.1 Sri T.V.S. Prabhakar Rao, Counsel for Respondent Nos.3 and 4.
Headnote:Civil Procedure Code, 1908—Order XXI Rules 90, 66 and 67 r/w Section 47—Attachment of property for recovery of decretal amount—Market value must be determined by issuing notice to the parties—Value fixed by Executing Court without takings such steps in terms of Rule 66 is vitiated in law—If a party has not raised such objections, at the relevant point of time, he would be precluded from challenging the resultant sale—Sale conducted by Executing Court set aside—Appeal allowed. (Paras 9 to 15, 19 and 21)
The 1st respondent filed O.S.No.79 of 1988 in the Court of I Additional District Judge, Rajahmundry, against the appellant and another, for recovery of amount. The suit was decreed. After the decree became final, the 1st respondent filed E.P.No.57 of 1993. Attachment was obtained against plaint 'A' to 'E' schedule properties. 'B' and 'e schedule properties are owned by the appellant. The judgment-debtor is said to be a firm) and that it owned 'D' and 'E' schedule properties that were offered as security for repayment of the debt.
2. The 'B' and 'e schedule properties were brought to sale on 26.11.1998, and respondents 2 and 3 emerged as highest bidders for the two items of property. The appellant filed E.A.No.3 of 1999 under Rule 90 of Order XXI, read with Section 47 C.P.C. The grounds pleaded by him are broadly that, (a) though plaint 'D' and 'E' schedule properties were offered as security, the 1st respondent did not proceed against the same, on account of collusion between some of the parties; (b) the value of plaint 'B' and 'C' schedule properties was put at an incredibly low figure, without following the procedure prescribed under the relevant Rules of Order XXI, for determination of the value; and (c) the publicity, as provided for under Rule 67 of Order XXI, was not given, before the sale was conducted. Other ancillary contentions were urged.
3. The application was mainly opposed by respondents 2 and 3. The Executing Court dismissed E.A.No.3 of 1999, through its order dated 08.03.2001. Hence, this appeal, under Order XLIII Rule 1 C.P.C.
4. On behalf of appellant, Sri N.5ubba Reddy, learned counsel, advanced arguments. He submits that the determination of the market value of the property is an important step in the execution proceedings and the same was observed in breach. He contends that the Basic Value Register of the relevant time, stipulated the value of plaint 'B' and 'C' schedule properties around Rs.50,000/- and 2,00,000/-, respectively, whereas the executant has mentioned the same at Rs.10,000j- and Rs.10,500/-, without any basis. He further contends that Rule 67 makes it obligatory on the part of the - Executing Court to ensure that the sale proclamation is given adequate publicity and insists that the publication be made in the locality, in which the property is situated. Learned counsel submits that the record clearly demonstrates that no publicity whatever was given in the Seetanagaram Village, where the properties situate. He has placed reliance upon certain decided cases.
5. Sri Challa Danamjaya, learned counsel for respondent No.1 and Sri T.V.S. Prabhakar Rao, learned counsel for respondents 2 and 3 - auction purchasers, on the other hand, submit that the appellant did not raise any objection before the sale took place. They contend that though an attempt was made to assail the market value mentioned in the sale proclamation, the same was negatived by the executing Court and the said order has become final. It is also their case that Rule 90 disables the judgment debtor from challenging the sale, in case the concerned objections were not raised at the relevant point of time. They too have relied upon some precedents.
6. The suit filed by the 1't respondent against the appellant and another, for recovery of amount was decreed, and after the decree became final, execution petition was filed. Various items of properties were got attached. Schedule 'B' and 'C' properties were proposed to be sold. The appellant raised objections of different kinds, at various stages. Ultimately, the sale came to be held and respondents 2 and 3 emerged as the successful bidders. The amount offered by them was deposited. The appellant filed an application under Rule 90 of Order XXI, read with Section 47 C.P.C., to set aside the sale. As observed earlier, several grounds were urged. Out of them, emphasis was on the method of fixation of market value of the properties, and nature of publicity, given to the sale proceedings. The