T. N. VALLINAYAGAM, J.

( 1 ) THIS CRP is against the order confirming the sale and issuance of sale certificate in favour of the second respondent, auction purchaser, and dismissing the application of the petitioner to set aside the sale by the Executing Court and which order has been confirmed by the first appellate Court.

( 2 ) THE shortfacts of the case are that the first respondent filed execution Petition No. 117/88 for recovery of Rs. 1,28,000/ -. The sale of Sy. No. 23/2, 23/6b, measuring 1 acre 29 guntas and 0-25 guntas respectively of Nimbekaipura village, Bidarahalli hobli, Bangalore south Taluk, was sought for. The sale at the spot was directed to be held on 24. 7. 90 and sale on Court on 28. 7. 90. It is alleged that on 28. 7. 90 the Presiding Officer was on leave and on 8. 8. 90 an application was filed by the auction purchaser and the case was advanced and auction purchaser was permitted to pay the balance bid amount. Objection was raised by the judgment debtor by filing i. A. 4. Ultimately, by order dated 22. 12. 90 the trial Court has dismissed the application of the judgment-debtor and allowed application for confirmation of sale.

( 3 ) THE sale was questioned by the judgment-debtor on various grounds and ultimately over-ruling the objections of the judgment- debtor the sale was confirmed and the sale certificate was directed to be issued. The appellate Court confirms such an order holding that the objections raised by the judgment-debtor are untenable.

( 4 ) BEFORE this Court, order of confirmation of sale is attacked on the following grounds: (i) Under Order 21 Rules 72 (3) the sale is bad because purchase is made by auction purchaser. (ii) Mandatory provision of Rule 138 of Civil Rules of Practice have not been complied at all. (iii) The survey number of the property brought to sale does not tally with the correct survey number. (iv) There is no sale in the eye of law at ail (v) No verification statement nor valuation certificate was furnished. (vi) Though point under Rule 138 was not raised specifically before the Trial Court as well as appellate Court, he is entitled to raise it as a point of law before this Court.

( 5 ) THE learned Counsel for respondent has submitted that there was earlier Execution Petition No. 113/79 wherein the judgment-debtor was allowed to pay the decree amount in instalments which he failed to comply with. On 28. 7. 90 all the properties of the judgment-debtor was attached. Though five properties were attached in all fairness, only one property was brought to sale. The objection regarding survey number have been considered by the Trial Court and it was found that what was brought to sale was correct survey number. Several opportunities were given to the judgment-debtor to avoid the sale by payment and in particular opportunities are given between 17. 3. 90 till 21. 4. 90 for payment of the decree amount, and the judgment-debtor did not avail opportunities for payment. So far as procedure under Rule 138 is concerned, it is submitted that there is order directing deposit of amount. So far as objection under Order 21 ,rule 72 (3) is concerned no prejudice is not caused to the decree holder. Consequently said provision may not apply.

( 6 ) HEARD the counsels.

( 7 ) SO far as judgment-debtor is concerned, it appears that he is only interested in dragging on the proceedings and a decree in suit of the year 1979 is sought to be realised only in 1990 and even that is questioned in 1999 till now, without paying the money due. Execution itself was filed on 10. 7. 88. In the earlier execution No. 133/ 79 the defendant was given permission to pay in monthly installments of Rs. 2,500/- and that opportunity was not availed. In the later execution which is now spoken to in CRP i. e. , Ext. No. 117/88 again opportunity was given for him to make payment. In fact, time was granted to judgment-debtor on 17. 3. 90 till 21. 4. 90 directing the payment of balance in full settlement in two instalments.

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