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2020 Supreme(AP) 339

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. VENKATA RAMANA, J.
Rachabathuni Govinda Rao and Ors. - Appellants
Versus
Golla Tirupathi Venkaiah - Respondent
CRP No. 3321 of 2019
Decided On : 17-02-2020

Advocates Appeared:
For the Appellant : P. Veera Reddy rep. N. Srihari.
For the Respondents: S. Subba Reddy rep. M. Radha.

Headnote:

Limitation Act - Article 127 and 123 - Civil Procedure Code,1908 - Order 21 Rule 95 CPC read with Section 151 - Registered mortgage - Order refund of the amount - Suit against the petitioners on the foot of a registered mortgage and against the security of E.P. schedule property. A preliminary decree was passed on 17.8.2010 thereon, granting redemption period of six months. In IA No. in OS No. a final decree was passed in terms of the preliminary filed in the executing Court basing on the above decrees - petitioners were set ex parte test of the value of E.P. schedule property was directed by the executing Court and Field Assistant of the Court gave a report – Held, Court is directed to afford an opportunity to the petitioners to file their counter, shall consider their objections in respect of the execution of decrees and thereafter proceed in accordance with law - Respondent is permitted to withdraw whatever amounts deposited by him as purchase money as is permissible in law including poundage amount, if he is so advised - On application of the respondent, the executing Court is directed to order refund of the amount spent on purchase of stamps for engrossing sale certificate by issuing a certificate or voucher to present before appropriate authorities - Petitions, stand closed – Ordered Accordingly

ORDER :

M. Venkata Ramana, J.

1. All these civil revision petitions are filed against the orders of the Court of learned I Additional District Judge, Guntur, dated 11.9.2019 in EAs. 2, 3, 4 and 8 of 2018 and EA No. 35 of 2017 in EP No. 66 of 2016 in OS No. 261 of 2008 respectively. The judgment-debtors are the petitioners. The respondent is the decree-holder.

2. The first petitioner (J.Dr.) died on 12.3.2018. Other two petitioners are his legal representatives.

3. All the above E.As., were filed to reopen the E.P., to set aside the ex parte order passed against them in E.P., to stay all further proceedings, to recall delivery warrant and to set aside the sale of E.P. schedule property respectively.

4. The respondent (D.Hr.) laid a suit against the petitioners on the foot of a registered mortgage, dated 18.3.2006 and against the security of E.P. schedule property. A preliminary decree was passed on 17.8.2010 thereon, granting redemption period of six months. In IA No. 434 of 2011 in OS No. 261 of 2008, a final decree was passed in terms of the preliminary decree on 4.9.2015. EP No. 66 of 2016 was filed in the executing Court basing on the above decrees on 21.3.2016 for realisation of Rs. 21,79,093/-. The mode of execution requested was to sell the E.P. schedule property in public auction in terms of Order 21 Rule 64 and Rule 66 CPC.

5. E.P. schedule property is a house bearing Door No. 22-11-106 consisting of a vacant site and a terraced house in Ward No. 7, Block No. 2, TS No. 43 covering 225 Sq. yards out of Ac. 0.13 cents in Tenali Municipality, in Guntur District.

6. As seen from the proceedings in the execution petition, the petitioners were set ex parte on 8.12.2016. Thereupon, the test of the value of E.P. schedule property was directed by the executing Court and the Field Assistant of the Court gave a report, showing the value of this property at Rs. 85,00,000/- and whereas the respondent gave the value at Rs. 50,00,000/-. Proclamation was directed thereupon and publication for proposed sale was made in 'Andhra Prabha' Telugu Daily to hold sale on 17.4.2017. But, the sale could not be carried out on that day. Therefore, fresh proclamation was directed, to hold the sale on 7.6.2017 and a publication for such purpose was carried out in 'Andhra Prabha' Telugu Daily again.

7. Sale was conducted in the Court in public auction, of the E.P. schedule property on 7.6.2017. The respondent participated in the bid with the permission of the executing Court on his petition under Order 21 Rule 72-A CPC and became the highest bidder purchasing the property for Rs. 90,00,000/-. He deposited 1/4th of the purchase money on 7.6.2017 and balance 3/4th purchase money on 14.6.2017 alongwith poundage. He also deposited expenses for purchase of stamps for engrossing sale certificate, on 19.6.2017.

8. After 60 days in terms of Order 21 Rule 92 CPC, sale was confirmed in favour of the respondent on 8.8.2017. Sale certificate was issued to him on 21.9.2017. On 22.9.2017 E.P. was closed.

9. Thereafter, the respondent filed an execution application in EA No. 24 of 2017 under Order 21 Rule 95 CPC read with Section 151 CPC to direct the Field Assistant (Court Amin) to deliver possession of E.P. schedule property and since it was returned, the respondent filed another application in EA No. 28 of 2017 for re-entrustment of the delivery warrant to the Field Assistant for the same purpose of delivery of the property. He also filed EA No. 34 of 2017 for granting police aid. The executing Court allowed EA No. 28 of 2017 and EA No. 34 of 2017.

10. At that stage, the petitioners presented all the above applications for the purposes stated therein.

11. The contentions of the petitioners in all these petitions is that there was no service of notices on them in the execution petition and the respondent fraudulently obtained orders for substituted service of notice under Order 5 Rule 20 CPC by a publication in 'Prajashakthi Telugu Daily' and thus, on 8.12.2016 they were set

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