A sale in execution of a decree cannot be set aside unless the judgment debtor proves material irregularity, fraud, or substantial injury.

JUDGMENT

1. Judgment debtor filed the above revision against the order dtd. 1/4/2022 in C.M.A.No.5 of 2018 on the file of V Additional District Judge, Vijayawada confirming the order dtd. 23/3/2018 in E.A.No.44 of 2013 in E.P.No.10 of 2012 in O.S.No.245 of 2009 on the file of II Additional Senior Civil Judge, Vijayawada.

2. Decree Holder filed suit O.S.No.245 of 2009 on the file of II Additional Senior Civil Judge, Vijayawada against the petitioner herein and three minor children for recovery of amount from the estate of husband of petitioner by name Galib Bude. Suit was decreed on 10/10/2011. Pending the suit, I.A.No.259 of 2009 was filed under Order XXXVIII Rule 5 of CPC and item Nos.1 to 4 shown in the petition schedule were attached. Pursuant to judgment and decree, E.P.No.10 of 2012 was filed under Order XXI Rule 64 of 66 of CPC. The executing Court ordered notices and they were served on petitioner and others (judgment debtors 1 to 4). Sri NSR, Advocate filed vakalat on behalf of respondents 1 to 4 as per docket endorsement dtd. 14/6/2012. Execution petition was adjourned from time to time for filing counter. On 10/9/2012 the executing Court adjourned the matter to 26/9/2012 for filing counter on payment costs of Rs.100.00. On 26/9/2012, P.O. is on leave and hence, it was adjourned to 19/10/2012. On 19/10/2012, neither costs was paid nor counter was filed. Even, there is no representation. Hence, the matter was adjourned to 3/12/2012 for settlement of terms. On 22/1/2013 counsel for decree holder filed a memo stating that item No.2 of E.P. schedule would be sufficient to satisfy the EP amount and hence, prayed to delete item No.1. Accordingly, auction was conducted in open Court on 22/1/2013. Bid was knocked down in favour of highest bidder D.Gangadhar for Rs.17, 50, 000.00. Auction purchaser paid 1/4th of bid amount i.e. Rs.4, 37, 500.00 including poundage of Rs.52, 545.00.

3. On 8/3/2013, petitioner filed E.A.No.44 of 2013 under Order XXI Rule 90 of CPC to set aside the sale. Petitioner also filed ASSR No.4961 of 2013 against the judgment and decree in O.S.No.245 of 2009 with a delay of 428 days. On 22/4/2013, in ASMP No.814 of 2013, the High Court directed the appellant to deposit 1/3rd of decretal amount within a period of six weeks and eventually, ASMP was dismissed on 24/8/2013. A review petition was filed and the same is pending consideration. The executing Court dismissed the E.A.No.44 of 2013 on 23/3/2018 and the sale was confirmed on 29/3/2018. Aggrieved by the same C.M.A.No.5 of 2018 was filed and the lower appellate Court dismissed the same by order dtd. 1/4/2022. Assailing the said order, the present revision is filed.

4. Heard Sri V.Rajanna, learned counsel for petitioner, Sri Sunkara Rajendra Prasad, learned counsel for 1st respondent-decree holder and Sri S.Rajendra Prasad learned counsel for D.Hr and Ms.Vangala Sailaja, learned counsel for 2nd respondent-auction purchaser.

5. Learned counsel for petitioner would submit that sale was not properly conducted and the same was vitiated. He would also submit that notice under Rule 66 was not properly served on the petitioner and others and hence, the sale is liable to be set aside.

6. On the other hand, learned counsel for decree holder and auction purchaser, supported the order of the Courts below.

7. Now, the point for consideration is:

Whether the executing Court committed any irregularity in conducting sale of property in E.P.No.10 of 2012 in O.S.No.245 of 2009?

8. The undisputed facts, as per the record, are that decree holder filed suit O.S.No.245 of 2009 against the petitioner and three minor children for recovery of amount on the strength of promissory note said to have been executed by late Galib Bude. Decree holder also filed I.A.No.259 of 2009 seeking attachment of schedule properties. Accordingly, properties were attached on 20/3/2009 and the same was made absolute on 13/10/2009. Suit was decreed on 10/10/2011. E.P.No.10 of 2012 was filed under Order XXI