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2016 Supreme(AP) 476
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Bangaru Krishnarjuna & Others – Petitioner
Versus
Dasari Atchutamba & Another – Respondent
Civil Revision Petition No. 2707 of 2014
Decided On : 29-09-2016
For the Petitioners:Srinivas, Advocate.
For the Respondents:Madhavi Priya, Advocate.
Headnote:
Civil Law – Civil Suit – Civil Procedure Code, 1908 – Order XXI – Rules 64 and 66 – Suit for recovery of money – Decreed in favour of the plaintiff – Thereafter, the plaintiff filed E.P. for sale of the petition schedule property for realisation of the decree amount and the property was sold on 23.04.2013 in the public auction. Questioning the public auction the petitioners/third parties to the suit but for claiming as vendees from judgment debtor -J.Dr. filed E.A. to set aside auction on grounds of irregularity in conducting sale for the entire property, instead of sufficient portion therein and said petition since rejected holding not maintainable, present revision is filed impugning the same – Contention of counsel for petitioners that lower Court gravely erred in rejecting the petition and failed to consider the principles of law that while conducting auction sale in execution of a decree, the Court is under a duty to follow the mandatory requirements contained under Order XXI Rules 64 and 66 CPC – It is also contention that the executing Court cannot sell more than such extent of property which is enough to satisfy the decree – Held, mere fact that a claim petition was filed impugning the attachment and same was dismissed for default, when rightly observed by the lower Court is of no bar to the impugning of the subsequent sale, the lower Court should have been considered that Rule 90 clause (3) should not have been strictly applied to the petitioners who are even third parties to the execution proceedings, though they are persons claiming through the J.Dr. within the meaning of Section 146 CPC and Order XXII Rule 10 CPC – Right of auction purchaser arises only on confirmation of sale and till then his right is nebulous and has only a right to consider for confirmation of sale as held in Desh Bandu Gupta supra by the Apex Court – In this case the auction purchaser is no other than decree holder and not even a third party purchaser – Thereby order impugned in the revision is unsustainable and revision is accordingly liable to be allowed to remit back matter to lower Court for fresh disposal on merits by treating application only under Order XXI Rule 64 and Order XXI Rule 97 CPC as per the decisions supra and also of other expressions of Apex Court in Porahmdeo Chowdary Vs. Rishikesh Prasad Jaiswal, (AIR 1997 SC 856) on principle that right of third party to decree can be even before dispossession to raise claims for adjudication from which a decree to be passed and same is appellable by referring to earlier expressions in Banwar Lal Vs. Satyanarayanan, (AIR 1995 SC 358) and Babulal Vs. Raj Kumar, (AIR 1996 SC 2050) and same referred and relied in later expressions viz., Sreenath Vs. Rajesh, (AIR 1998 SC 1827); Silver Line Forum Private Limited Vs. Rajiv Trust, (AIR 1998 SC 1754) in Anwarbee Vs. Pramod DA Joshi (2000 (10) SCC 405); NSS Narayana Sarma Vs.M/s. Gold Stove Exports, (AIR 2002 SC 251); Ashan Devi Vs. Phulwasi Devi, (AIR 2004 SC 511) and S.Rajeswari Vs. Kulasekaran, (2006 (4) SCC 412) – Petition is allowed. (Paras 13, 14 and 15)
B. Siva Sankara Rao, J.
1. The revision petitioners are third parties to the suit O.S.No.176 of 2002 filed by the plaintiff against the defendant for recovery of money. The suit was decreed in favour of the plaintiff on 25.02.2009. Thereafter, the plaintiff filed E.P.No.109 of 2009 for sale of the petition schedule property for realisation of the decree amount and the property was sold on 23.04.2013 in the public auction. Questioning the public auction dated 23.04.2013, the petitioners/third parties to the suit but for claiming as vendees from judgment debtor (for short J.Dr.) filed E.A.SR.No.1688 of 2014 in E.A.No.95 of 2014 under Order XXI Rule 90 CPC to set aside the auction on the grounds of irregularity in conducting the sale for the entire property, instead of sufficient portion therein and said petition since rejected holding not maintainable, the present revision is filed impugning the same.
2. It is the contention of the learned counsel for the petitioners that the lower Court gravely erred in rejecting the petition and failed to consider the principles of law that while conducting auction sale in execution of a decree, the Court is under a duty to follow the mandatory requirements contained under Order XXI Rules 64 and 66 CPC. It is also the contention that the executing Court cannot sell more than such extent of property which is enough to satisfy the decree. The lower Court also went wrong in rejecting the petition on the ground that the earlier petition filed by the petitioners under Order XXI Rule 58 CPC was dismissed for default and the expression in Malempati Harinarayana Vs. Vankayalapati Subba Rao, (2013 (2) ALT 520) not considered and sought for setting aside the order of the lower Court and to allow the revision petition as prayed for.
3. Whereas it is the contention of the learned counsel for the revision respondents that order of the lower Court holds good and for this Court while sitting against the revision there is nothing to interfere and sought for dismissal of the revision.
4. Heard and perused the material on record.
5. The petitioners claim that the first petitioner purchased an extent of Ac.1.08 cents in survey No.315/3C under registered sale deed dated 28.07.2005 and the 2nd petitioner purchased an extent of Ac.1-22 cents in S.No.315/4C by registered sale deed dated 27.07.2005. It is also their claim that petitioner Nos.3 and 4 purchased an extent of Ac.1-00 cents out of Ac.1-22 cents supra under an unregistered sale agreement from the 2nd respondent/ J.Dr. K.V. Ramana in claiming independent rights over the property. The sale warrant amount of EP.No.109 of 2009 shows Rs.1,84,100/- and the properties were sold on 23.04.2013 in the public auction. That was shown knocked in favour of the auction purchaser, no other than the decree holder for Rs.5,50,000/- the property shown sold, and the J.Dr. having alienated the property did not make an objection. It is one of the contentions in their claim petition affidavit in support of the petition dated 31.05.2014 that for realization of Rs.1,84,100/- sale warrant amount of the decree debt due, the sale of the entire property is illegal and unsustainable, but for to bring only sufficient extent to meet the decree debt at best and it is out come of fraud on Court by the decree holder, even apart from the same causes irreparable injury and such recourse adopted by court also unsustainable.
6. A perusal of the E.P. schedule shows the total extent of survey No.315/B-Ac.1-11 cents, S.No.315/A-Ac.0-15 cents and S.No.315/C is Ac.1-50 cents totally comprise of Ac.2-76 cents and with common boundaries given in the E.P. Schedule for the entire Ac.2-76 cents. A perusal of the order of the lower court in dismissing the application is mainly on two counts viz., auction was held on 23.04.2013 and the application filed is by mentioning order XXI rule 90 CPC to set aside the sale and the decision placed reliance in Pandurangan and Another Vs. Dasu Reddy, (AIR 1973 Madr
