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2015 Supreme(AP) 897

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. Ramalingeswara Rao, J.
Kamireddy Sumathi and Ors. – Appellants
Vs.
C. Mallikarjuna Reddy and Ors. - Respondent
Civil Revision Petition No. 3466 of 2011
Decided On : 28-12-2015

Advocates:
Advocate Appeared:
For the Appellant : V. Sudhakar Reddy
For the Respondents: V.M.M. Chary and C. Subodh

Headnote:

Civil Law – Civil Procedure code, 1908 – Order 21 – Rule 89 – Limitation Act – Article 127 – Ancestral property – Promissory note – Default in payment of balance amount – Seeking to protect their ancestral property. Their attempt is strongly opposed by the auction purchaser, who is the third respondent herein. Their father, who is the second respondent is unrepresented. The decree holder first respondent remains silent – Sought for permission of the Court to pay the decretal amount and other expenses to the decree holder towards full satisfaction of the decree in O.S. No. 190 of 2003 on its file, to raise attachment and to set aside the sale conducted in the E.P – Case of the second respondent executed a promissory note for Rs. 25,000/- in favour of the first respondent on 01.03.1998. Though he paid an amount of Rs. 4,000/- subsequently, he committed default in paying the balance amount – Held, I no anomaly and that there are no different periods of limitation for making deposits and/or filing an application for setting aside the sale. It is by virtue of Order 21 Rule 89 CPC that an application for setting aside a sale and a deposit can be made. Order 21 Rule 89 CPC does not prescribe any period within which the application is to be made or deposit is to be made. All that Order 21 Rule 92(2) provides is that if the deposit is made within 30 days from the date of sale and an application is filed then the Court would have no discretion but to set aside the sale. That does not mean that if the deposit is made after 30 days the Court could not entertain the application. If the deposit is made beyond the period of 30 days, but within the period of 60 days, then it will be within the discretion of the Court whether or not to grant the application – Impugned order in E.A. is set aside – While filing the earlier petition under Order 21 Rule 89 did not deposit any amount. In view of the settled law, such applications are not maintainable. But that does not debar the petitioners from filing the instant application seeking permission of the Court to deposit the amount dehors the provisions of Order 21 Rule 89 or 92. In such an application, the petitioners can raise the invalidity of sale and it is the duty of the Court to examine that issue under Order 21 Rule 64. That right is available to the petitioners as the sale was not confirmed in favour of the auction purchaser and the right of the auction purchaser to take back his amount is protected. Hence the points considered have to be answered in favour of the petitioners – Civil Revision Petition is allowed. (Paras 28, 29 and 30)

ORDER :

A. Ramalingeswara Rao, J.

1. Two unfortunate unmarried women filed the present Civil Revision Petition seeking to protect their ancestral property. Their attempt is strongly opposed by the auction purchaser, who is the third respondent herein. Their father, who is the second respondent is unrepresented. The decree holder first respondent remains silent.

2. The brief facts leading to the present case are that the second respondent executed a promissory note for Rs. 25,000/- in favour of the first respondent on 01.03.1998. Though he paid an amount of Rs. 4,000/- subsequently, he committed default in paying the balance amount. The first respondent filed O.S. No. 190 of 2003 on the file of the learned Junior Civil Judge, Sullurpet, for recovery of an amount of Rs. 52,500/- on 12.06.2003. It was decreed for Rs. 52,500/- with subsequent interest at 6% per annum on the principal amount of Rs. 21,000/- on 13.10.2004. The first respondent filed E.P. No. 85 of 2005 before the learned Junior Civil Judge, Sullurpet, and the property of the second respondent was attached on 22.08.2005. A proclamation of sale of the property was issued on 25.10.2007 declaring the date of auction as 12.11.2007. On the said date, the auction was conducted and the third respondent herein became the successful bidder. He purchased the property for a sum of Rs. 2,25,000/-. He paid 1/4th of the auction amount on that day. The petitioners herein filed E.A. No. 348 of 2007 seeking stay of further proceedings and E.A. No. 349 of 2007 making claim over the property. On 21.11.2007, the third respondent paid the balance of auction amount. On 26.06.2008 both the applications filed by the petitioners were dismissed for default. The applications in E.A. Nos. 278 and 279 of 2008 to restore those applications are pending. Thereafter, the petitioners filed E.A. No. 338 of 2008 seeking permission of the Court for depositing the decretal amount and the same was dismissed on 20.07.2011. Challenging the same, the present Civil Revision Petition is filed.

3. This Court, while issuing notice before admission, directed the petitioners to deposit the entire E.P. amount within a period of four weeks in order to show their bona fides. The petitioners complied with the said order of this Court by depositing the entire E.P. amount on 10.10.2011. The stay granted earlier has been continuing till today. The above facts are not in dispute.

4. As stated above, the present Civil Revision Petition is filed against the order in E.A. No. 338 of 2008 seeking permission of the Court to pay the decretal amount and other expenses to the decree holder towards full satisfaction of the decree in O.S. No. 190 of 2003 on its file, to raise attachment and to set aside the sale conducted in the E.P. The application was filed stating as follows:

I submit that the E.P. schedule property is our ancestral property. It is clearly mentioned in the title deed and pattadar pass book. But, my father i.e., J.Dr is addicted to bad vices and he is not looking after our welfare. As such, we both are living by doing tailoring and embroidery and residing with our relatives. Recently we came to know that our ancestral property was attached and brought for sale. We both were not yet married and the only E.P. schedule property is alone is there for our livelihood and for our marriage expenses and other things. As such, if the E.P. schedule property is sold it is very difficulty to celebrate our marriages. As such, we filed a claim petition in this case and it is pending for disposal.

5. Neither the decree holder nor the judgment debtor filed any counter. But, the auction purchaser filed a counter affidavit stating that the judgment debtor is the absolute owner of the property, he borrowed the amount for the family necessities and hence the petitioners are liable to pay the decretal amount. He also stated that he becam















































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