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2016 Supreme(AP) 303
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
K. Lakshmidevamma and another - Petitioners
Vs.
Canara Bank and others - Respondents
C.R.P No. 5312 of 2011
Decided On : 28-07-2016
For the Petitioners: Sri. T.S Anand and Sri. Y. Srinivas Murthy
For the Respondents: Sri. K. Sitaram and Sri. K.V Subrahmanya Narsu
Headnote:
Civil Law – Civil Procedure Code, 1908 – Order 34 – Rule 5 – Constitution of India, 1950 – Article 227 – Dismissal of application – Auction sale – Saying that it is the right of Judgment Debtor (mortgager) to liquidate the mortgage debt before confirmation of sale by deposit of amount of the decree under execution with poundage, if any – Said application was originally filed under Order 21 Rules 89 and 90 CPC and subsequently, the prayer as complying with the provisions under Order 34 Rule 5 CPC seeking amendment was allowed, it appears – Judgment debtors show that EP schedule properties were auctioned and sale is not yet confirmed – Judgment Debtors, who are applicants (revision petitioners), deposited Rs. 3,36,000/- on 01.02.2010 after obtaining challan from executing Court to the credit of EP proceedings – Affidavit petition averments are to set aside auction sale by permitting to deposit amount – Held, conclusion on one hand impugned by the revision petitioners/ mortgagers and on other hand supported by decree holder bank vis-a-vis auction purchaser concerned, from prepositions referred supra, once there is a contribution of Court also in not raising objection if at all though not of much reliance of amount mentioned of sale warrant due is not correct from the sale conducted, as per sale warrant amount mentioned of amount and that too pursuant to which Court issued the challan or lodgment schedule and the order of the lower Court also reflects by its inadvertence and even by not proper verification by the counsel for judgment debtors if any, the Court could have been considered this aspect of the contribution of the Court also for giving that lodgment schedule – It is not even a case that despite brought to the notice either by return of the application or by return of the lodgment schedule, the judgment debtors wanted to deposit only that amount and thereby not entitled to any benefit – When such is the case and by the time the application is filed and even by the time the lower Court pronounced the order, the sale was not confirmed and the right of the mortgagors available under Order 34 Rule 5 CPC, before confirmation at any time, once the revision is filed impugning the order and after the impugned order only even on same date, sale is confirmed before filing revision and even before time available to file revision – Within the power of revision under Article 227 of Constitution when it is reflected not only the impugned order out come of non-exercise of the power that supposed to be exercised in ordering to pay the balance from the contribution by the Court also and thereby unsustainable and that causes prejudice to the rights of the revision petitioners, this Court while sitting in revision is constrained to interfere to allow – Petition is allowed (Paras 29 and 30)
B. SIVA SANKARA RAO, J.
The revision petitioners are the judgment debtors in E.P No. 25 of 2010 which is the out come of a preliminary and final decree in O.S No. 35 of 1991 obtained by the 1st respondent bank as decree holder/plaintiff.
2. The revision petitioners are the unsuccessful applicants in E.A No. 20 of 2010 filed under Order 34 Rule 5 of the Code of Civil Procedure (for short CPC), vide order dated 18.11.2011 in dismissing the application saying that it is the right of the Judgment Debtor (mortgager) to liquidate the mortgage debt before confirmation of sale by deposit of the amount of the decree under execution with poundage, if any. The said application was originally filed under Order 21 Rules 89 and 90 CPC and subsequently, the prayer as complying with the provisions under Order 34 Rule 5 CPC seeking amendment was allowed, it appears on 25.03.2011 in E.A No. 210 of 2010.
3. In E.A No. 20 of 2010, the averments in the petition supporting affidavit filed on 29.01.2010 by the 2nd respondent/Judgment Debtor on behalf of two revision petitioners/ judgment debtors show that EP schedule properties were auctioned on 03.12.2009 and sale is not yet confirmed. The Judgment Debtors, who are the applicants (revision petitioners), deposited Rs. 3,36,000/- on 01.02.2010 after obtaining challan from the executing Court to the credit of EP proceedings. The affidavit petition averments are to set aside the auction sale dated 03.12.2009 by permitting to deposit the amount.
4. The counter of DHr/Bank as respondent to the petition in opposing the same stated that the petitioners are well aware of the balance amount due to the Bank and intentionally now filed this petition for causing hurdles for confirmation of the sale and thereby there are no merits in the petition and the petition is liable to be dismissed with heavy costs.
5. The counter affidavit filed by the auction purchaser by name G. Sidda, who is the highest bidder of the Court auction dated 03.12.2009 is with contentions particularly from para 4 onwards that according to law, the petitioners/Judgment Debtors ought to have deposited the sale amount in addition to 5% equal to purchase money as poundage, costs and interest within 30 days (sic. 60 days) from the date of sale conducted on 03.12.2009; whereas the application to set aside the sale, even filed on 29.01.2010, amount deposited was on 01.02.2010 and what the petitioners deposited is even incorrect amount and thereby the application ought to have been rejected before numbering for the application is nothing but to harass the auction purchaser, who is the bona-fide highest bidder, and for absolutely no merits.
6. The sum and substance of the petition averments thereby necessary for disposal of the revision are, they could secure money and will deposit the amount of Rs. 3,36,000/- which represents sale warrant amount of Rs. 3,20,000/- and (poundage of 5%) Rs. 16,000/-. In fact, in the return of the application by Court it was only on other grounds, for there was no objection taken by the Court of the amount not fully represent, much less by verification with reference to the sale warrant amount for which the auction was conducted of Rs. 4,23,142/-; needless to say after deduction of the amounts paid by the judgment debtors pending execution of full satisfaction recorded of Rs. 10,000/- + Rs. 10,000/- + Rs. 5,000/- + Rs. 5,000/- during February and December, 2008 and November, 2009 what the sale warrant amount for which the auction could be conducted comes to only Rs. 3,93,142/-. It is to say there is also part of act of Court in this regard therefrom in not rectifying by raising the objection and return of the application of the sale warrant mentioned to be deposited is not correct; further undisputedly the Court issued challan for the amount of Rs. 3,36,000/- i.e Rs. 3,20,000/- and 5% poundage comes to Rs. 16,000/-, when the judgment debtors sought by invoking Order 34 Rule 5 CPC to liquidate the mortgage decree befo
