The court emphasized the application of Order XXI Rule 90 of the CPC in cases of substantial irregularities causing injury to the judgment-debtor and cited legal precedents to support its decision.

JUDGMENT

1. The judgment debtor before the court executing the decree filed this civil revision petition under article 227 of the constitution of India impugning the order dtd. 13/8/2019 in E.A.No.223 of 2019 in E.P.No.114 of 2014 in O.S.No.494 of 2012 of learned I Additional Senior Civil Judge, Kakinada.

2. Respondent herein is the auction purchaser - cum - decree holder before the court executing the decree.

3. Sri P. Rajasekhar, learned counsel for revision petitioner and Sri A.K. Kishore Reddy, learned counsel for respondent submitted arguments in support of their respective contentions.

4. The following facts are required to be noticed: O.S.No.494 of 2012 before the learned I Additional Senior Civil Judge, Kakinada was a suit for recovery of money. After due contest, the suit was decreed on 22/1/2014 in favour of the plaintiff/creditor. Since the decree directions for payment of money were not complied with by the defendant, the decree holder sought for execution of the decree passed in his favour and filed E.P.No.114 of 2014 before the court which passed the decree. That execution was levied under Order XXI Rules 66 and 64 of the CPC requesting the executing court to sell the A and B schedule mentioned properties after duly issuing notice to the JDr and after making necessary proclamations. Decree amount was Rs.2, 40, 700.00. By the time execution was levied, it stood at Rs.2, 87, 402.00. By the time the property was brought for sale, the amount overdue was Rs.3, 38, 603.00. We are concerned with that amount as it fell due as on 21/1/2019. Notices were ordered by the executing court and judgment debtor made his appearance through his learned counsel and the prayer of the decree holder in seeking sale of the EP schedule properties was opposed saying that it could not be sold since it belonged to joint family and since it was subjected to a mortgage. On 19/2/2016, learned Senior Civil Judge heard both sides and passed the order where under it overruled the objections and noted that there was mortgage and the decree holder was directed to notify the mortgage as an encumbrance in the sale proclamations that are to be taken out. Earlier to this order, the mortgagee had filed E.A.No.187 of 2015. Mortgagee claimed that the EP schedule properties were mortgaged and he had sued in O.S.No.32 of 2014 and learned II Additional Senior Civil Judge, Kakinada decreed the suit in his favour. In that execution application, judgment debtor did not put up any contest. The decree holder laid his contest. By an order dtd. 5/2/2016, the executing court held that EP schedule properties were attached already and the attachments shall continue and in recognition to the mortgage, the decree obtained by the claimant, the sale in execution shall go ahead after notifying this mortgage. Be it noted all the above referred proceedings took place well in the presence of judgment debtor assisted by his learned counsel.

5. Thereafter the sale proceedings went ahead. Sale terms were settled. Proclamations were made and newspaper publication was done. Public auction was held and the property was sold by the court. On an application being allowed by the executing court, DHr also participated in the auction and eventually the decree holder became the highest bidder. In the said auction sale, execution petition A and B schedule properties were sold out. Total amounts that were required to be deposited were duly deposited by the decree holder in the executing court. The sale was confirmed on 13/8/2019. Thereafter the sale certificate was issued. Thereafter the decree holder applied for delivery of property in the year 2020 itself.

6. While the above events were progressing, the judgment debtor filed E.A.No.223 of 2019 before learned I Additional Senior Civil Judge, Kakinada. This application was filed under Sec. 47 and under Order XXI Rule 90 of the CPC. In the said application, he prayed the executing court to set aside the sale dtd. 21/1/2019. DHr filed her cou