This revision presents an occasion to deal with certain important aspects of 16 Rule 89 of Order XXI of the Code of Civil Procedure, 1908 (C.P.C).

2. The facts that gave rise to the filling of this revision are: .

3. The 1st respondent filed O.S.No.74 of 1992 in the Court of the Junior Civil Judge, Parchur, against. respondents 2 to 5, for recovery for foreclosure of a mortgage, covering a sum of, Rs. 7,930/-. A preliminary decree was passed on 28.03.1997. Since that was not complied with, the Executing Court passed a final decree on 29.06.1999, at the instance of the 1st respondent. Both the items of mortgaged property were proceeded against. The first item was sold on 01.07.2008. The pt respondent participated in the auction by seeking permission under Rule 72 of Order XXI C.P.C, and he emerged as the highest bidder. No challenge is made to that sale. The second item of the E.P. schedule was brought to sale on 06.03.2009. Here again, the pt respondent participated in the auction and emerged as the highest bidder.

4. The petitioner filed E.ANo.54 of 2007 under Rule 58 of Order XXI C.P.C, stating that Item No.2 of the E.P. Schedule property was purchased by her father under an agreement of sale dated 15.09.1986, from the previous owner and that he filed O.S.No.169 of 2001, in the same Court for the relief of specific performance of the agreement. She further pleaded that the dispute in the suit was settled by the Lok Adalat, balance of consideration was paid on 12.12.2003, and that rights of ownership were conferred upon her father. The property was said to have been Settled upon her, through a written document. With these and other relevant pleadings, she claimed the relief provided for under the Rule. That application was not pursued, obviously because the sale has taken place.

5. The petitioner filed E.ANo.139 of 2009 under Rule 89 of Order XXI C.P.C It was stated that the petitioner is prepared to deposit the amounts provided for under the said provision, and prayed for setting aside of the sale. The application was opposed by the 1st respondent. He stated that the petitioner has no right to file the petition, since the deed of settlement relied upon by her is invalid in law. The Executing Court dismissed the E.A., through order, dated 06.04.2011. Hence, this revision.

6. Sri Nimmagadda Satya narayana, learned counsel for the petitioner, submits that the view taken by the Executing Court that the petitioner is not entitled to file an application under Rule 89 of Order XXI, is not tenable in law. He contends that it is not necessary for any individual to prove and establish title to maintain an application under that provision. Placing reliance upon a judgment of this Court in T. Venugopal Naidu v. N.Tintmala Naidu (1) AIR 1981 A.P. 238 and that of the Patna High Court in Onkar Nath Jalan v. Ramanand Prasad (2) AIR 1970 Patna 368 (F.B.), learned counsel submits that it is not at all necessary for a person to establish title and that having interest in the property is sufficient for this purpose.

7. Sri G. Vasantha Rayudu, learned counsel for the 15t respondent, on the other hand, submits that the petitioner failed in her effort in seeking relief under Rule 58 of Order XXI C.P.C. and that the one filed under Rule 89 of the said Order, is not maintainable in law. He submits that the petitioner did not file any document in support of her plea; and that the Executing Court has taken correct view of the matter.

8. The dispute between the petitioner, on the one hand, and the 1st respondent, on the other hand, is in relation to item No.2 of the E.P. Schedule Property. An application under Rule 58 can• be maintained, before the sale of the attached property takes place. It is no doubt true that the petitioner filed an application It under Rule 58 of Order XXI on an earlier occasion, but did not pursue the same, resulting in dismissal thereof.

9. The dismissal of an application under Rule 58 of Order XXI C.P.C., does not operate as a