J U D G M E N T

This miscellaneous first appeal is filed challenging the order dated 16.12.2017 passed on I.A.No.3 filed under Order XXI Rule 90 read with Section 151 of CPC in Ex.No.1221/2012 on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru.

2. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of the case of the appellants is that the appellants have subscribed the chit for an amount of Rs.6,00,000/- from respondent No.1-chit fund and had paid certain installments in the chit subscribed and the appellants have bid a chit for the amount of Rs.1,80,000/- and balance of Rs.4,20,000/- was paid after deducting the foreman commission and subsequently the appellants have also paid the amount to respondent No.1 and respondent No.1 under the Karnataka Chit Fund Act had initiated proceedings before the arbitrator and respondent No.1 has not been served with any notice and an exparte order came to be passed on 31.10.2008 against the appellants directing them to pay a sum of Rs.5,10,000/- with interest at 21% per annum along with penal interest at the rate of 3% and the said order was not communicated to the appellants at any point of time.

4. It is also the case of the appellants that the respondents have filed the execution petition in Ex.No.1927/2009 and the same was dismissed for default and again the respondents have filed the execution petition in Ex.P.No.1221/2012 and claimed an amount of Rs.14,99,127/- as on 28.05.2012. It is also the contention of the appellants that they have entered their appearance and paid the amount of Rs.25,000/- in cash before the Court and had also paid a sum of Rs.1,00,000/- through a cheque bearing No.184130 dated 27.02.2013 and the decree holders have filed the petition calculating the wrong amount and erroneously claimed exorbitant amount from the appellants. It is also the contention of the appellants that the appellants were in turn about to pay the amount to the respondents, at that time, the respondents obtained the order of attachment of the property bearing Sy.No.1 situated at Erigenahalli village, Kasaba Hobli, Nelamangala taluk measuring 2 acres 27 guntas and had also auctioned the property in public without notice to the appellants and the sale was conducted at the spot without any paper publication and no reserve price was fixed by the Trial Court and in the spot auction, one Rajesh had bid for Rs.61,00,000/- but he being the highest bidder, not deposited the statutory deposit in the spot and also failed to appear in the Court and subsequently, without any further paper publication or notification on re-sale as provided under Order 21 Rule 87 of CPC and without issuing fresh proclamation, the Court sale was conducted at 4.15 p.m. and the persons who were colluded with the decree holder was present before the Court and the Court auction was conducted and the auction was closed at Rs.63,25,000/-. Hence, the appellants had filed the application under Order XXI Rule 90 read with Section 151 of CPC for setting aside the said sale on the ground of irregularities in conducting public auction and the said application came to be dismissed without any reasoning and without considering the objections raised by the appellants. Hence, the present appeal is filed.

5. The main contention urged in the appeal that though an order was passed in the year 2008, an execution petition in Ex.No.1927/2009 was filed by the decree holder and the same was dismissed for default and again without restoring the said execution petition, the decree holder again filed the present execution petition in the year 2012 hence, the second execution petition is not maintainable in law and the said fact has not been brought to the notice of this Court. It is also contended that the Court has passed the order of attachment in respect of Sy.No.1/2 measuring 2 acres 29 guntas and the Court has ordered for spot sale without fixing the reserve price and the sale cannot be hel