Mandatory compliance with procedural rules in mortgage execution sales is crucial to prevent collusion and protect judgment-debtors' interests.

JUDGMENT :

A.V. SESHA SAI, J :

Order, dated 21.08.2023, passed by the Court of the learned II Additional District Judge, Guntur, dismissing EA No.09 of 2014 in EP No.64 of 2012 in OS No.110 of 2009, is under challenge in the present civil miscellaneous appeal, preferred under Section 115 of the Code of Civil Procedure.

2. Judgment-debtors in the aforementioned execution petition are the appellants in the present appeal. In OS No.110 of 2009, instituted by the respondent, on the foot of a mortgage, a Preliminary Decree was passed on 28.02.2011 and a Final Decree was also passed on 20.01.2012. The subject property is an extent of 200 Sq.yards of site and RCC Building in it, situated within the Guntur Municipal Corporation limits. Seeking enforcement of the decree, plaintiff-decree-holder filed EP No.64 of 2012, by way of sale of the mortgaged property, under Order 21 Rule 64 CPC. Sale was conducted on 30.06.2014, wherein the Executing Court permitted the decree-holder to participate. On 25.08.2014, the judgment-debtors-appellants filed EA No.09 of 2014 in EP No.64 of 2012 under Order 21 Rule 90 CPC, seeking to set aside the sale. The decree-holder-respondent herein filed counter, resisting EA No.09 of 2014, and the learned II Additional District Judge, Guntur, by way of the impugned order, dated 21.08.2023, dismissed EA No.09 of 2014. Hence, the present civil miscellaneous appeal.

3. Heard Sri N. Subba Rao, learned Senior Counsel, representing Sri K. Siva Rama Krishna, learned Counsel for the appellants on record, and Sri K. Sai Rama Murthy, learned Counsel for the respondent, apart from perusing the entire material available on record.

4. According to the learned Senior Counsel, Sri N. Subba Rao, the impugned order is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 21 Rule 90 CPC. It is further contended that the questioned order is in violation of the provisions of Order 21 Rules 72 and 72-A CPC; that the leave was granted to the decree-holder i.e., Sri Bharathi Warehousing Corporation, Guntur, but Sri Nonne Madhava Siva Prasad, in his individual capacity, participated in the auction, which is contrary to the permission accorded by the Executing Court. In support of his submissions and contentions, learned Counsel places reliance on the following judgments :

1. P. Ramireddy v. P. Sundara Rama Reddy, AIR 1986 AP 29 (Paragraph Nos.5, 6 and 7).

2. P. Bahu Leyan v. Moossa E.P. and others , MANU/KE/0636/2005 (Paragraph Nos.4, 7 & 12, Pg.90 of the CMA).

3. N. Prabhakara Naidu v. Nellore Finance Corporation, 2008 (6) ALD 689 (Paragraph Nos.10, 14, 15, 20, 21, 22, 23 & 24, Pg.98 of the CMA)

4. Anto Nitto v. South Indian Bank Limited , AIR 1998 Ker. 219 (Paragraph Nos.2, 4, 11, 12, 13, 14 & 15 Pg.111 of the CMA).

5. D.S. Chohan and another v. State Bank of Patiala , (1997) 10 SCC 65 (Paragraph Nos.2 and 3)

6. Radhy Shyam v. Shyam Behari Singh , AIR 1971 SC 2337 (Paragraph Nos.7 & 8).

5. Emphatically refuting the contentions of the learned Counsel for the petitioners-appellants herein, learned Counsel for the respondent submits that there is no error nor there exists any infirmity in the impugned order and, in the absence of the same, the questioned order is not amenable for any correction under Order 43 Rule 1 CPC; that having regard to the facts and circumstances of the case, no interference of this Court