JUDGMENT :

This Civil Revision Petition is filed by the Decree Holder/Plaintiff under Section 115 of C.P.C., against the order, dated 05.11.2012, in C.M.A. No. 5 of 2010 on the file of the Appellate Court below i.e., Senior Civil Judge Court, Repalle, Guntur District.

2. The parties herein after will be referred to as ‘petitioner’/judgment debtor and ‘respondent’/decree holder as arrayed before the appellate court in C.M.A. No. 5/2010.

3. The facts leading to the present revision petition are that the respondent/decree holder filed suit in O.S.No.286 of 2000 on the file of Prl. Junior Civil Judge Court, Repalle and obtained a Decree for Rs.1,12,044/-. The respondent filed EP 5 of 2003 to attach Ac.3.56 cents of petitioner, and to sell the same property for Rs.6,12,000/- against the warrant amount of Rs.1,17,522/-, for realization of the decretal amount. The value of the schedule property per acre as per the Government is Rs.4,66,360/-. The market value of the entire schedule property was more than Rs.25 lakhs @ Rs.7 lakhs per acre. The executing court ought to have Ac.1.00 itself which would be sufficient to satisfy the warrant amount of Rs.1,17,522/-. But the Executing Court violated the provisions of Order 21, Rule 64 of the Code of Civil Procedure, 1908 (for brevity hereinafter referred to as ‘CPC’) and sold the entire property. Hence, the respondent filed E.A. No.34 of 2010 in E.P.No.5 of 2003 in O.S.No.286 of 2000 before the executing court to set aside the sale.

4. The respondent/decree holder filed a counter denying all the material averments in the petition-affidavit, and further contended that in the attachment petition the J.Dr., took plea that the property does not belongs to him. However, such objection was overruled and notice under Order 21, Rule 66 CPC was issued. On receipt of the said notice, the J.Dr., made his appearance, and on merits orders were passed. The J.Dr., got filed a claim petition in E.A. No. 132 of 2004 through his mother, sisters and brother and the same was also dismissed. At the time of conducting sale, the J.Dr., did not raise any such objection. The sale was conducted in accordance with the provisions of law. The present application is barred by law of limitation and liable to be dismissed with costs.

5. No oral or documentary evidence was adduced by both the parties in the execution application before the executing court. Executing Court dismissed the application.

6. The Appellate Court below on hearing both sides and considering the material on record, opined that the sale conducted by the Executing Court on 15.11.2005 was not in accordance with law as there was a material irregularity and and set aside the sale.

7. Now, the point that arises for consideration is,

“Whether the order of the Appellate Court below warrants any interference of this Court under section 115 of CPC / Article 227 of the Constitution of India?”

POINT:-

8. The contention of the revision petitioner is that the Appellate Court below grossly erred in applying Article 134 of the Limitation Act, 1963 instead of Article 127 for the application filed by the respondent/J.Dr., under Order 21, Rule 90 of the CPC, which applies only to an application filed by an auction purchaser seeking for delivery of possession of the property purchased in the auction conducted by the Court. The further contention of the revision petitioner is that to file the application under Order 21, Rule 90 of the CPC the limitation is 60 days and it starts from the date of sale and in that view of the matter the application was filed by the J.Dr., after 60 days from the date of sale, is barred by limitation. The further contention of the revision petitioner is that the material on record clearly establish that the judgment debtor has participated throughout the execution proceedings before the executing court, but he never pleaded illegality, irregularity