Akula Venkata Sesha Sai, J.

1. The petitioner herein is the judgment debtor in EP No. 259 of 2001 on the file of the Court of II Additional Senior Civil Judge, Kakinada, East Godavari district. This revision filed under Section 115 of Code of Civil Procedure challenges the order dated 11.6.2012 passed by the said Court in EA No. 207 of 2012 in EP No. 259 of 2001 in OS No. 225 of 1999.

2. One Guthula Sanyasi Rao instituted OS No. 225 of 1999 for recovery of amount on the foot of a mortgage. The said suit was decreed on 13.2.2001. Thereafter, the decree holder filed EP No. 259 of 2001 for realisation of the amount by way of sale of the mortgaged property. Pursuant to a paper publication made on 22.2.2003, auction was held on 25.8.2005 and in the said auction, with the leave of the Court under the provisions of Order XXI Rule 72 of CPC, participated in the said auction and emerged as a successful bidder. The said EP No. 259 of 2001 stood for confirmation of sale on 24.1.2006. Meanwhile, on 8.1.2006, the decree holder died and the 2nd respondent herein filed EA No. 62 of 2008, requesting the Court below to recognise him as legal representative of decree holder on the basis of a will said to have been executed by the decree holder. Pending EA No. 62 of 2008, the petitioner herein filed EA No. 440 of 2008 under the provisions of Order XXI Rule 90 of CPC, praying the Court below to set aside the sale. Thereafter, the petitioner herein also filed EA (SR) No. 1052 of 2012 on 5.3.2012 under the provisions of Order XXI Rule 90 of CPC. Subsequently, petitioner filed EA No. 207 of 2012 on 26.3.2012, praying the Court below to permit her to withdraw EA No. 440 of 2008, so as to proceed her to prosecute EA (SR) No. 1052 of 2012 dated 5.3.2012. The said application was resisted and the learned Senior Civil Judge passed an order on 11.6.2012, dismissing the said application. This revision assails the validity and legal sustainability of the said order.

3. Heard the learned Counsel for the petitioner and the learned Counsel for respondents and perused the material available on record.

4. It is contended by the learned Counsel for the petitioner that the order passed by the Court below is erroneous and contrary to law and is opposed to the very spirit and object of Order 23 Rule 1(2) of CPC. It is the further submission of the learned Counsel that the Court below did not properly consider the contents of the application and had the contents of the affidavit taken into consideration from proper perspective, the order impugned would not have emanated. It is also the submission of the learned Counsel that as the petitioner herein could not put-forth all the contentions in EA No. 440 of 2008, the present application was filed. Learned Counsel further submitted that the Court below ought to have allowed the application for giving a quietus to the entire litigation. It is further submitted by the learned Counsel that the first application i.e. EA No. 440 of 2008 was not filed in a proper form and was filed only by one Judgment Debtor, as such, the office of the Court below should have returned the same; that at the instance of the decree holder, the sale was adjourned for more than 2 1/2 years on applications filed by the decree holder; that the comprehensive application was filed pleading fraud in EA (SR) No. 1052 of 2012 under Section 47 and Order 21 Rule 90 read with Section 151 of Code of Civil Procedure and in the event of same being allowed, the same would date back to the date of filing of EA No. 440 of 2008; that the petitioner filed Memo vide SR No. 1881 of 2012 dated 25.4.2012, enclosing copies of the judgments in Pillakathuku Subbarathnam and another v. Executive Officer, Polathala Malleswaraswamy Temple and others, 2005 (5) ALD 75 : 2005 (4) ALT 423; Madappa v. Lingappa and another, AIR 1987 Kar. 60 and Kasarapu Sujatha and another v. Veera Velli Veera Somaiah, 2008 (3) ALD 525, but the Court below did not consider the same. It is furth