JUDGMENT

Judgment Debtor filed the present Civil Miscellaneous Appeal against the order dated 05.10.2017 in E.A.No.180 of 2013 in E.P.No.61 of 2010 in O.S.No.648 of 2009 on the file of II Additional Senior Civil Judge, Vijayawada.

2. 1st Respondent, being plaintiff filed suit O.S.N.648 of 2009 against the appellant herein for recovery of an amount of Rs.1,14,795/-, principal being Rs.1,00,000/-. Plaint was presented on 15.06.2009. The address of defendant shown in the plaint is resident of TF/A1, D.No.40-15-19/2, Rajasree Enclave, Brundavan Colony, Labbipet, Vijayawada. Defendant, in the suit, was set exparte. Trial Court decreed the suit on

16.09.2009.

3. Pursuant to decree and judgment, Decree Holder initiated execution proceedings. E.P.No.61 of 2010 was filed on the file of II Additional Senior Civil Judge, Vijayawada under Order XXI Rules 54, 64, 66,72 and 82 of CPC. Rule 54 attachment was affected on 29.09.2010. On 08.03.2011 Judgment Debtor in E.P. was set exparte. On 27.04.2011, after filing of sale papers and encumbrance certificate proclamation was ordered. After settlement of terms sale notice was ordered to Judgment Debtor on 06.06.2011 and the same was returned unserved with an endorsement “no such named person in that address and whereabouts not known”. On 15.11.2011 Executing Court ordered for steps. On 02.12.2011, publication was ordered to be published in „Krishna Herald‟. On 03.01.2012 the executing Court set the Judgment Debtor exparte. Decree Holder valued the property at Rs.1,25,000/-, Amin valued the property at Rs.10,50,000/-. As per the Market Value Certificate dated

17.03.2012, value of property is Rs.14,17,900/-.

4. Auction was conducted on 08.11.2012. 2nd Respondent in the appeal became Auction Purchaser. Sale was knocked down for Rs.15,65,000/- and the sale was confirmed on 21.01.2013. Sale certificate was issued on 21.03.2013. As the matter stood thus, the appellant/Judgment Debtor filed E.A.No.180 of 2013 under Order XXI Rule 90 of CPC praying the Executing Court to set aside the sale dated 21.01.2013.

5. Going by the affidavit filed in support of the said petition, which was filed on 30.04.2013, it was contended interalia that she is not aware of institution of suit or execution proceedings; that endorsement on suit summons would establish that Judgment Debtor is residing at Hyderabad; that substitute service through paper publication in the local newspaper is not a publication in the eye of law; that suit promissory note is forged and fabricated; that a separate application to set aside exparte decree will be filed; that she came to know about the proceedings on 24.04.2013; that auction purchaser and decree holder are close relatives; that as per the Government value, property is valued at Rs.24,08,000/- however, as per market value, its value is Rs.45,00,000/-; that the decree holder made wrong description of property, which amounts to material irregularity; that Decree holder committed fraud in paper publication and conducting sale and hence, the judgment debtor sustained substantial loss and thus, filed the petition to set aside the sale dated 21.01.2013.

6. 2nd Respondent-auction purchaser filed counter on 24.04.2015 and denied the allegations in the affidavit and contended that he sold the property in the month of July, 2014 to the third parties and delivered possession to them.

7. During the enquiry, having been raised material irregularity, for the reasons best known, the judgment debtor neither examined himself or anybody on his behalf nor marked any documents with regard to averments made in the affidavit.

8. On consideration of material available on record, the Executing Court dismissed the application on 05.10.2017. Aggrieved by the said order, the present Civil Miscellaneous Appeal is filed.

9. Heard Sri K.S.Gopala Krishna, learned senior counsel representing Sri T.C.Krishnan, learned counsel for appellant and Sri V.R.Avula, learned counsel for 2nd respondent.

10. Learned senior counsel for th