IMPORTANT POINT
A sale under Order XXI Rule 90 can only be set aside if the applicant proves both material irregularity and substantial injury resulting from it.

JUDGMENT :

(Venkata Jyothirmai Pratapa, J.)

Impugning the Order dated 28.02.2007 in E.A.No.221 of 2006 in E.P.No.53 of 2004 in O.S.No.157 of 2002 on the file of the Court of Principal Senior Civil Judge, Narasaraopet,[In Short, the learned Senior Civil Judge] the judgment-debtor,[In short, “J.Dr”] (J.Dr), preferred the present appeal.

2. A petition under Rule 90 of Order-XXI read with Section 151 of the Code of Civil Procedure, 1908,[In short ‘the Code”] came to be filed in E.P. No.53 of 2004 by the Judgment Debtor seeking to set aside sale held on 03.03.2006 on the ground of fraud and misrepresentation, contending that the sale was not properly held and schedule property was sold at a lesser price. The said application was dismissed by the Executing Court on the ground that the J.Dr. failed to prove fraud or material irregularity alleged in conducting the sale of EP schedule properties.

3. Appellant herein was the Petitioner/judgment-debtor; respondent No.1 herein was the respondent decree- holder before the Executing Court. For the sake of convenience, the appellant and Respondent No.1 would be referred to as Judgment Debtor (J.Dr) and Decree Holder,[In short, “D.Hr”] (D.Hr) respectively, in this judgment. During the pendency of the present appeal, the D. Hr-cum-auction purchaser died, Respondent No.2, who is his legal representative, was added, vide order in I.A.No.2 of 2022 dated 12.04.2022.

Grounds for Appeal

4. Being aggrieved by the Order of dismissal, the J.Dr. preferred the appeal on the following grounds:

a. The Executing Court failed to follow the procedure contemplated under law by allowing the D.Hr to participate in auction without any permission.

b. The Court shall take the valuation of the D.Hr. as well as the J.Dr., vide Order–XXI Rule 66 (e) of the Code. In the similar circumstances, Hon‘ble Apex court held that if proclamation does not contain the valuation furnished by the J.Dr. and no reasons are assigned by the Executing Court to ignore such valuation, it is a material irregularity as reported in Gajadhar Prasad & Ors v. Babu Bhakta Ratan & Ors, 1973 SC 2593 =1973 2 SCC 629.

c. Vide the judgment reported in 1976 (1) APLJ 57 (SN), noninclusion of the value given by the J.Dr., is a material irregularity.

d. The Executing Court simply ignored valuation furnished by the J.Dr., on the ground that it does not contain the seal of the Office, though it contains seal of the Sub Registrar‘s Office.

Arguments Advanced at the Bar

5. Heard Sri T.V.Jaggi Reddy, learned counsel for the Appellant/J.Dr and Sri G.V.S.Mehar Kumar, learned counsel for the Respondent/D.Hr.

6. Learned counsel for the J.Dr., in elaboration to the Grounds taken in the Memorandum of Appeal, would submit that the sale conducted in the present case is purely hit by fraud and material irregularity. It is stated that though the J.Dr., filed a copy of valuation of the property obtained from the Sub Registrar‘s Office showing the value of the property as Rs.9,11,655/-, but the learned Senior Civil Judge simply ignored the said document on the premise that it was not affixed with the stamp of the Sub Registrar‘s Office and the sale was knocked down in favour of the D.Hr. for a lesser price without considering the value of the property as furnished by the J.Dr. Ultimately, he urges to set aside the impugned order and the sale.

7. Contrasting the same, learned counsel for the Respondent/ D.Hr., would submit that the sale certificate has been issued on dismissal of the petition filed by the J.Dr. under O-XXI Rule-90 of the Code. At the time of conducting sale, the judgment-debtor along with her husband present. He would also submit that the present petition under Order-XXI Rule-90 of the Code is not maintainable, after confirmation of the sale. It is also submitted that the learned Senior Civil Judge has conducted the sale in a proper manner and knocked down the sale in favour of highest bidder. The D.Hr. has obtained permission from the Court and participated in the