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A.V. Sesha Sai, J
Bonda Nageswara Rao – Appellant
Versus
Kata Venkata Reddy – Respondent
CIVIL REVISION PETITION No.921 of 2019
For the Appellants/Petitioners: N. Subba Rao
For the Respondents: D. Kasim Saheb, G. Venkateswarlu, O. Manohar Reddy, P. Sriraghuram, E.V.S.S. Ravi Kumar, Chakkilam Venkateswarlu, Virupaksha Dathathreya Gouda
Questions regarding material irregularity in conducting execution sales, such as the failure to sell only a sufficient portion of property, must be raised via specific procedural remedies within the prescribed limitation and cannot be treated as nullities under general provisions, especially when findings of fact establish the identity of the property.
Headnote:(A) Code of Civil Procedure, 1908 - Order 21 Rules 64, 66, 89, 90 - Section 47 - Execution of decree - Challenge to sale - Material irregularity in execution - It is settled law that the question as to what was sold in execution of the decree is a finding of fact. High Court in revisional jurisdiction is not justified in reopening findings of fact regarding the identity of property sold. Objections regarding non-compliance with provisions for sale of portion of property sufficient to satisfy decree are matters to be agitated under Order 21 Rule 90 and not typically under Section 47. (Paras 15, 18, 19, 27)
(B) Execution of decree - Legal Representatives - Where a person is impleaded as a legal representative of a deceased defendant, the estate is sufficiently represented. In the absence of fraud or collusion, the decree binds the entire estate notwithstanding the omission of other heirs. (Para 23)
Facts of the case:
Judgment debtors challenged the dismissal of their application under Section 47 of the Code of Civil Procedure, seeking to set aside a court auction sale. The petitioners contended that the property was improperly described, that the decree was personal and not against the deceased's estate, and that the execution court failed to satisfy the decree by selling only a portion of the attached property, violating mandatory procedural requirements.
Findings of Court:
The Executing Court correctly identified that the schedules in the attachment and sale proclamation were identical. The findings of fact recorded by the lower court regarding the identity of the property sold were not perverse. Furthermore, the petitioners failed to raise valid objections under the appropriate procedural rules within the limitation period.
Issues: Whether the execution sale was void due to non-compliance with procedural requirements in the sale proclamation and whether the decree against the deceased's legal representatives could be executed against the attached property.
Ratio Decidendi: Defects in the sale proclamation or the sale of an entire property instead of a portion constitute material irregularities to be challenged under Order 21 Rule 90, not necessarily rendering a sale void ab initio under Section 47. A person brought on record as legal representative sufficiently represents the estate, and findings of fact made by the trial court regarding the identity of property sold are binding in revision.
Result: Civil Revision Petition dismissed.
Judgment debtors in E.P.No.104 of 2003 in O.S.No.933 of 1997 on the file of the Court of the Principal Senior Civil Judge, Visakhapatnam, are the petitioners in the present Civil Revision Petition. The present Revision challenges the order dated 30.01.2006 passed by the Court of the Principal Senior Civil Judge, Visakhapatnam, in E.A.No.293 of 2004 in E.P.No.104 of 2003 in O.S.No.933 of 1997. Respondent No.1 herein is the Decree Holder and respondent No.1 herein instituted O.S.No.933 of 1997 on the file of the Court of the Principal Senior Civil Judge, Visakhapatnam, against (1) Sri Bonda Nageswara Rao, S/o.Atchannaidu, (2) Sri Bonda Raghunath, S/o.Nageswara Rao and (3) Smt. Bonda Mary, W/o.Nageswara Rao, for recovery of a sum of Rs.1,77,713/- on the foot of a chit fund transaction, wherein defendant No.1 joined as a member and defendant Nos.2 and 3 stood as guarantors. Pending O.S.No.933 of 1997, plaintiff/decree holder/respondent No.1 herein filed I.A.No.1004 of 1997 under the provisions of Order 38 Rules 5 and 6 of the Code of Civil Procedure, 1908 (C.P.C.), and the trial Court on 13.11.1997, passed a conditional order of attachment and the same was made absolute on 16.07.1997. Pending the suit, defendant No.1, Sri Bonda Nageswara Rao, passed away and the said suit was decreed on 30.10.2000 against defendant Nos.2 and 3 jointly and severally for a sum of Rs.1,77,713/- together with subsequent interest @12% per annum on Rs.1,40,000/- from 13.11.1997, i.e., the date of suit, till the date of realisation and the trial Court also awarded costs of Rs.9,442/-. Respondent No.1 herein filed E.P.No.104 of 2003 under Order 21 Rule 11 of C.P.C. against defendant Nos.2 and 3, who are the petitioners herein, seeking enforcement of the decree by way of the sale of the attached schedule property. The schedule property is a house bearing D.No.2-292, Old Dairy Farm Post, Chinagadili village, Indiranagar, Visakhapatnam Municipal Corporation Limits. The boundaries of the said property shown in E.P.No.104 of 2003 are as follows:
| East | - | Municipal Road |
| South | - | House bearing D.No.2-293 |
| West | - | Compound wall and vacant site belonging to Sri Pratap. |
| North | - | House bearing D.No.2-291 |
2. Sale notice was published on 22.10.2002, proposing the sale on 14.11.2002, and on which date, sale was conducted and respondent No.2 herein, Mr. Kata Venkata Reddy stood as highest bidder and the bid was knocked down in his favour for Rs.14,50,000/- and the sale was confirmed on 30.01.2006 and the sale certificate was also issued on 19.04.2006. Pending E.P.No.104 of 2003 (Old E.P.No.573 of 2000), M/s. Kalyani Constructions, represented by its Managing Partner Smt. Rajamudili Sujatha filed E.A.No.674 of 2002 (New E.A.No.29 of 2003) on 08.11.2002 against the decree holder, judgment debtors (petitioners herein) under Section 47 of the C.P.C. on the ground that the petitioners herein sold two items of the property by way of registered sale agreement-cum-general power of attorney on 12.01.2001. Schedule of the said E.A.No.674 of 2002 (New E.A.No.29 of 2003) is as follows:-
"Item No.1:-
Visakhapatnam District, Visakhapatnam Sub-Registry, Visakhapatnam Municipal Corporation, Pedagadili village & Panchayat, Chinagadili village bearing S.No.110/2part, undivided and unspecified share of 372.4 Sq.yds or 311.326 Sq.mts. together with a 130 Sft.A.C.Sheets shed thereon bearing Door No.2-293/1, Assessment No.108306, Ward No.25 out of total area of 532.4 Sq.yds with 150 Sft.A.C.Sheet shed and bounded by:
| East | : | Road | 88 feet or 26.82 mts |
| South | : | Property belongs to Dr.N.Venkata Rao | 62 feet or 18.90 mts |
| West | : | Property belongs to T.Vijayalakshmi | 74 feet or 22.56 mts |
| North | : | Walkway lane | 62 feet or 18.90 mts |
Item No.II:-
All that site measuring 721.20 Sq.yds or 602.923 Sq.mts out of 871.20 Sq.yds or 720.436Sq.mts and with a plinth area of 300 Sft. Out of 400 Sft. In R.C.C.Building bearing Dr.No.2-293, assessment No.108305 situated in Adarshnagar area, covered by S
