Poundage payment is a condition precedent for setting aside auction sales and can be made after the sale is set aside, negating dismissal based on non-payment within the initial timeframe.

ORDER:

The present Revision is filed questioning the Judgment dated 05.07.2011 in C.M.A.No.27 of 2009 passed by Judge, Family Court-cum-Additional District Judge, East Godavari District, Rajahmundry confirming the Order dated 10.08.2009 passed by the I Additional Junior Civil Judge, Rajahmundry in E.A.No.52 of 2008 in E.P.No.28 of 2007 in O.S.No.1283 of 2004.

2. Brief facts: The petitioner is the judgment debtor. A suit O.S.No.1283 of 2004 was filed for recovery of money and the same was decreed on 14.06.2005. For realization of the decretal amount, the schedule property was auctioned on 02.09.2008 in E.P.No.28 of 2007. The petitioner then filed E.A.No.52 of 2008 under Order 21 Rule 89 CPC to set-aside the auction, as he had paid the decretal amount of Rs.45,000/- to the respondent No.1 towards full and final satisfaction of the decretal amount. A full satisfaction memo dated 12.09.2008 was filed into Court on 31.10.2008 by the decree holder. The above application was filed before confirmation of sale by the Court.

3. The Respondent No.1/decree holder did not file any counter. The Respondent No.2/auction purchaser filed his counter opposing the application and had contended that the sale was conducted on 02.09.2008 and the Respondent No.2 was declared as the highest bidder and the Respondent No.2 paid the entire bid amount of Rs.3,10,000/- with stamp duty and poundage. It was also contended that the Petitioner failed to deposit the amount within the time as prescribed for setting aside the sale under Order 21 Rule 89 CPC.

4. The trial Court after hearing the respective counsels rejected the plea that the application of the petitioner is barred by time and was of the opinion that the limitation prescribed to set- aside sale under Order 21 Rule 89 CPC is 60 days and not 30 days as contended by the Respondent No.2. Though, the trial Court noticed that the application by the Petitioner was filed on 31.10.2008, the application was filed without depositing the poundage amount and that the lodgement schedule was filed before the Court on 04.03.2009 i.e. after lapse of 6 months from the date of auction. Since the petitioner had failed to deposit the 5% of poundage amount as required within 60 days, the application of the petitioner was dismissed. The appellate Court also took a similar view and dismissed the appeal. Hence, the present Civil Revision Petition is filed.

5. Heard Sri T.V.S. Prabhakar Rao, learned counsel for the petitioner and Sri Ramji, learned counsel representing Sri E.V.V.S. Ravi, Kumar, learned counsel for the contesting respondent.

6. Contentions: The counsel for the Petitioner contended that the full satisfaction memo was filed into Court on 31.10.2008 and unless the Court permits the Petitioner to pay the poundage amount of 5%, the petitioner cannot pay the amount into Court. It was further contended that the value of the property as on date is more than Rs.20,00,000/- and that the petitioner would be suffering serious financial loss if the auction of the property is confirmed for realization of the decretal amount of Rs.45,000/-. It is also the contention of the Petitioner that once the decretal amount has been paid, the Respondent No.2/third party to the suit does not have any locus to seek for confirmation of the sale, as there is no decree to be executed.

7. The counsel for the contesting Respondent contended that the Petitioner having not deposited the poundage within the period of limitation prescribed under Order 21 Rule 89 CPC, cannot call in question the sale. The Respondent No.2 contended that the auction was an open auction and the Respondent No.2 had invested his savings and had purchased the property and due to the ongoing litigation, he is unable to realize the property.

8. Issue: The issue that falls for consideration is whether the application of the Petitioner could be dismissed on the ground that poundage was not paid within 60 days?

9. Reasoning: There is certain amount of uncertainty as to when the pou