IMPORTANT POINT
The limitation for filing an application under Order XXI Rule 89 CPC is sixty days, not thirty, and stay orders do not exclude this period.

JUDGMENT :

(Venkata Jyothirmai Pratapa, J.)

This Civil Miscellaneous Appeal is filed under Order XLIII Rule 1 r/w Section 104 of the Code of Civil Procedure, 1908,[for short ‘the C.P.C.’], challenging the validity and correctness of the impugned order dated 24.04.2014 in E.A.No.150 of 2013 in E.P.No.15 of 2003 in OS No.29 of 1997 on the file of the Court of Principal Senior Civil Judge, Kovvur, wherein, the petition filed by the Judgment Debtors,[For short ‘J.Dr.’] under Order XXI Rule-89 r/w Section 151 of CPC was dismissed.

2. The Appellant Nos.1 to 3 were the J.Dr. Nos. 1 to 3, the Respondent Nos.1 to 8 were the Decree Holders (D.Hrs.)/ Plaintiffs/Respondents and the Respondent No.9 was the auction purchaser/Respondent before the Executing Court. For the sake of convenience, the parties herein will be referred to as J.Drs, D.Hrs., and auction purchaser.

3. The case of the Appellants/J.Drs., in a nutshell, is as follows:

a. The Respondent No.1-deceased Decree Holder filed a suit in O.S.No.29 of 1997 on the file of the Court of Principal Senior Civil Judge, Kovvur against the Appellant No.1/ deceased J.Dr No.1., for recovery of money based on the promissory note and obtained a decree on 05.08.2002. The deceased Respondent No.1 filed E.P.No.15/2003 for realisation of decretal amount by bringing the scheduled properties for sale restricting their claim against Item No.1 of the E.P. Schedule Property.

b. The Appellant No.3, who is the daughter of the original J.Dr./Ganta Rama Mohan Rao, filed O.S. No.97/2004 on the file of the Court of II Additional District Judge, Family Court, West Godavari District, Eluru, seeking partition of the scheduled properties and also for a declaration that the decree obtained by the deceased and the Respondent No.1 herein are not binding on her.

c. During the pendency of this CMA, the Appellants filed IA No.1 of 2022 to receive the additional documents, which are certain certified copies. Other side did not raise any objection to the same. Accordingly, the petition is allowed.

d. During the pendency of the present CMA, the Respondent No.1, who is the original D.Hr., died and as such the Respondent Nos.2 to 8 are brought on record as the legal representatives. The Respondent No.9 herein is the auction purchaser, who purchased the property in the sale held on 16.12.2004, while so, the Appellant No.3/J.Dr.No.3 filed I.A.No.1831 of 2004 in O.S.No.97 of 2004 on the file of the court of II Additional District Judge, West Godavari, Eluru and obtained an order of injunction in respect of the confirmation of sale regarding her 4/9th share. Therefore, O.S. No.97 of 2004 was transferred to the Court of Additional District Court, Kovvur and renumbered as OS No.10/2012 and stay order was continued.

e. While so, the executing court conducted sale subject to the result of the claim of the J.Dr.No.3 in OS No.97/2004. Thereafter, the J.Dr.No.2 herein filed a petition in the partition suit claiming her share out of the share of her deceased son. She also obtained an order of injunction for confirmation of sale in the execution petition. It is further stated that at the intervention of elders, the matter was settled between the D.Hr. and the J.Drs. and thereby, the D.Hrs. filed IA No.614 of 2013 in OS No.10 of 2012 to vacate the order passed in IA No.1831 of 2004 for enabling them to proceed with the EP and the stay petition was allowed and thereby, injunction which was granted against the confirmation of sale in EP No.18/2003 was vacated on 25.04.2013.

f. The Appellant/J.Dr. herein filed EA No.150 of 2013 on 30.04.2013 to set aside the sale along with full satisfaction memo and by depositing the Poundage amount plus 5% of the purchase money. The auction purchaser filed counter contesting the matter on the ground that the amount deposited by the J.Dr. along with the petition filed under Order- XXI Rule-89 CPC is beyond the period of limitation i.e., 30 days, apart from taking other objections. The Respondent Nos.2 to 8,