1. This appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short ‘CPC’) is filed against the order, dated 05-11-2009, in E.A.No.342 of 2008 in E.P.No.14 of 2006 in O.S.No.123 of 2003, on the file of the Senior Civil Judge, at Gajuwaka, Visakhapatnam.

2. The above application was filed by the J.Dr. under Order XXI Rule 66 (2) CPC and XXVI Rule 19 CPC to set aside the sale, dated 28-11-2008 on two grounds viz., the upset price fixed by the Executing Court is far below the market value of the schedule property and that the Executing Court has not followed the very spirit and object of Order XXI Rule 64 CPC. The said application was dismissed on the ground that when the upset price was fixed at Rs.50,00,000/-, no bidders have come forward and therefore, the Court has no option except to conduct the sale reducing the upset price. Thereafter, basing on the valuation certificate, the Court again conducted the sale perfectly. Challenging the same, the J.Dr. filed the present appeal.

3. Now the point that arises for consideration in this appeal is whether the sale is liable to be set-aside on the ground of material irregularity?

4. Learned counsel appearing for the appellant-J.Dr. contended that Order XXI Rule 64 CPC has not been followed in as much as the decretal amount is around Rs.7,00,000/-, whereas the value of the property even according to the D.Hr. is Rs.80,00,000/- and a part of the property could have been put to sale so as to satisfy the decree. His further contention is that when the value of the property as per the Basic Value Register is not less than Rs.80,00,000/- even according to the D.Hr. Fixing upset price at Rs.50,00,000/- is very low and subsequently at Rs.45,00,000/- is illegal and it is a material irregularity so as to set aside the sale and hence, he prays to allow the appeal. He also contended that there is an obligation imposed upon the Court to follow Rule 64 of Order XXI. He relied on several decisions, which will be referred to at appropriate time.

5. On the other hand, learned counsel appearing for the 1st respondent-D.Hr contended that when the J.Dr had given an opportunity to give his estimate of the property, he has not produced any material to show that the property to be sold is valued Rs.90,00,000/-, that basing on the D.Hr’s and Amin’s Value, upset price has been fixed and just before the sale is conducted, the J.Dr filed the valuation certificate which cannot be taken into consideration, that the Court directed the D.Hr to file the valuation certificate, that there is no material irregularity in conducting the sale which caused prejudice to the J.Dr., that mere material irregularity by itself is not a ground to set aside the sale, that when the upset price was fixed at Rs.50,00,000/-, nobody has participated in the auction and in those circumstances, the Court has no option except to reduce the upset price and accordingly, the 2nd respondent-Auction Purchaser became the higher bidder and he deposited the sale proceeds into the Court and the conduct of the J.Dr is only to drag on the matter with a view to create a third party interest, that he was convicted in cheque bounce cases and hence, he prays to dismiss the appeal. He also relied on several decisions, which will be referred to at appropriate time.

6. The learned counsel for the 2nd respondent herein (auction purchaser) contended that bid amount borrowed on heavy interest, was held up because of the proceedings, that 2nd respondent has no interest in the property and therefore, he prays to set aside the sale.

7. There cannot be any dispute that J.Dr can move an application to set aside the sale under Order XXI Rule 90 CPC on two ground of material irregularity or fraud in publishing or conducting sale.

8. Sub-rule (1) of Rule 90 of Order XXI states that where any immovable property has been sold in execution of a decree, any person adversely affected may apply to the court for setting aside sale on the ground