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2020 Supreme(AP) 299
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
M. Venkata Ramana, J.
P Narayanamma, Anantapur District - Petitioner
Versus
Guonuguntla Prasanna, Anantapur District & Anr. - Respondents
Civil Revision Petition No. 3983 Of 2015
Decided On : 16-03-2020
For the Petitioner: Ramakrishna Pativada
For the Respondent: N. Aswartha Narayana
Headnote:
Code of Civil Procedure, 1908 - Order-XXI, rules 54, 64 and 66, Order-XXI, Rule-90, Section 47 - Civil Revision Petition - 1st respondent, in execution of the decree in O.S. of the Court of Senior Civil Judge, levied E.P. for realisation of money against the petitioner - Mode of execution requested was to attach the E.P. schedule property and to sell the same - Petitioner raised three grounds questioning the sale and order of the Executing Court - Held, In the order of the Executing Court it is observed that the Court need not fix the upset price at the time of Court sale. The learned appellate Judge also attempted to defend such inaction on the part of the Executing Court observing in para-13 of its order that the Executing Court proceeded with the sale recognizing the value of the - It did not specifically consider to such serious omission in fixing up the upset price with required attention - Thus, both the Courts below did not consider the significance of fixing up upset price in a Court auction and effect it bears upon Court sale - A procedure, which has attained the status of law by convention and practice, cannot be overlooked in the manner as is done by the courts below in the present case for certain invented reasons - Added to it, another objection raised on behalf of the petitioner in respect of the manner in which the sale was conducted, has to be considered - The bid-list and the observations recorded by the learned appellate Judge in the order referred to above show out of four bidders present, the bid was offered by only three bidders, who participated in the auction - The way in which the bid went on as per this bid-list, is a clear indication that there was a farce as an auction. It did not reflect any competitive bidding among the bidders - Civil Revision Petition is allowed.
Facts of the Case:
attachment of this property, its sale was ordered and on 20-07-2012 auction was conducted in open Court, in which the 2nd respondent became the highest bidder purportedly for Rs.5,00,000/-. On the date of the sale, on behalf of the petitioner, an Execution Application in E.A.No.55 of 2012 was filed by the petitioner under Section 47 CPC, claiming that she is not the absolute owner having right and interest in the E.P.schedule property and that her children have, in all, 24/25th share while she has only 1/25th share in the E.P.schedule property. Her claim that it was ancestral extent, where all her family members including herself upon death of her late husband to whom this property originally belonged, was dismissed
Finding of the Court:
In the order of the Executing Court it is observed that the Court need not fix the upset price at the time of Court sale. The learned appellate Judge also attempted to defend such inaction on the part of the Executing Court observing in para-13 of its order that the Executing Court proceeded with the sale recognizing the value of the - It did not specifically consider to such serious omission in fixing up the upset price with required attention - Thus, both the Courts below did not consider the significance of fixing up upset price in a Court auction and effect it bears upon Court sale - A procedure, which has attained the status of law by convention and practice, cannot be overlooked in the manner as is done by the courts below in the present case for certain invented reasons - Added to it, another objection raised on behalf of the petitioner in respect of the manner in which the sale was conducted, has to be considered - The bid-list and the observations recorded by the learned appellate Judge in the order referred to above show out of four bidders present, the bid was offered by only three bidders, who participated in the auction - The way in which the bid went on as per this bid-list, is a clear indication that there was a farce as an auction. It did not reflect any competitive bidding among the bidders
Result: Civil Revision Petition is allowed.
ORDER :
This Civil Revision Petition is directed against order in CMA No.16 of 2014 of the Court of learned I Additional District Judge, Anantapuramu dated 27.07.2015. It was preferred in turn against the order in E.A.No.80 of 2012 in E.P.No. 12 of 2011 in O.S.No. 17 of 2009 dated 08.07.2014 of the Court of the learned Senior Civil Judge, Dharmavaram.
2. The 1st respondent, in execution of the decree dated 18.03.2009 in O.S.No.17 of 2009 of the Court of Senior Civil Judge, Penukonda, levied E.P.No.12 of 2011 for realisation of Rs.1,27,207/-against the petitioner. Mode of execution requested was to attach the E.P. schedule property and to sell the same under Order-XXI, rules 54, 64 and 66 CPC.
3. An extent of Ac.9-70 cents in S.No.364/2 of Malyavantham village of Bathalapalli Mandal, Ananthapuram District is the E.P. schedule property.
4. Upon attachment of this property, its sale was ordered and on 20-07-2012 auction was conducted in open Court, in which the 2nd respondent became the highest bidder purportedly for Rs.5,00,000/-. On the date of the sale, on behalf of the petitioner, an Execution Application in E.A.No.55 of 2012 was filed by the petitioner under Section 47 CPC, claiming that she is not the absolute owner having right and interest in the E.P.schedule property and that her children have, in all, 24/25th share while she has only 1/25th share in the E.P.schedule property. Her claim that it was ancestral extent, where all her family members including herself upon death of her late husband to whom this property originally belonged, was dismissed in E.A.No.55 of 2012 on 17.10.2013.
5. Similarly stating and raising other grounds questioning the manner and conduct of the sale of E.P.schedule property, the petitioner filed E.A.No.80 of 2012 purportedly under Order-XXI, Rule-90 CPC.
6. The respondents contested it opposing such claim.
7. The objections urged on behalf of the petitioner were rejected by the Executing Court dismissing E.A.No.80 of 2012.
8. In this revision petition, the petitioner raised three grounds questioning the sale and order of the Executing Court. They are:
(1) That there was no necessity for sale of entire extent of Ac.9-70 cents in all to realise the E.P. amount, since a part of it could have been sufficient.
(2) The manner and conduct of sale is highly irregular in as much as there was no auction in real terms and that the bid was knocked down in favour of the second respondent, who is none other than the father-in-law of the 1st respondent.
(3) The Executing Court did not fix up upset price while conducting auction, which is a normal practice and also mandatory and it being a serious and material irregularity causing substantial injury to the petitioner/J.Dr.
9. The learned counsel for the 2nd respondent/D.Hr. contended that there was absolutely no material irregularity in conducting the sale and even otherwise the petitioner did not raise any objection at any stage in the execution proceedings except filing the petition under Order-21, Rule90 CPC questioning the sale and manner of conducting it as well as bringing the entire extent for such purpose.
10. Now, the point for determination is-“Whether the sale of E.P. schedule property stood vitiated on account of material irregularity in conducting the same, that caused substantial injury to the petitioner and if it was carried out on account of the collusion between the respondents 1 and 2 interse?
POINT:-
11. Among the grounds urged on behalf of the petitioner, significance has to be attached to the failure of the Executing Court in fixing upset price while conducting the auction.
12. Upset price or reserve price is a usual and conventional practice, setting out the bench mark from or above which the bid should be offered. Thus, it is the lowest or minimum sale price of the property in an auction fixed by the Executing Court. It is a well known method and practice in Court auctions. The object underlying in fixing upset price or reserve price is to facilitate co
