THE HON’BLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION NO.4797 OF 2017

ORDER:

This civil revision petition is filed by the auction purchaser against the order dated 11.07.2017 passed in E.P.No.77 of 2003 in O.S.No.174 of 2001 by the Senior Civil Judge, Khammam.

2. Pending disposal of the petition, one K. Venkateswarlu had filed E.A. No. 445/2003 under Order 21 Rule 58 of Code of Civil Procedure (for short ‘CPC’), but the said petition was not pressed and was accordingly dismissed. Thereafter, the Auction Purchaser sought restoration of E.A. No. 445/2003 and E.A. No. 448/2003, but the trial Court, by order dated 17.04.2017, refused such request and dismissed the same. The counsel for the decree holder, judgment debtor, and claim petitioner all prayed for dismissal of the said petition, while only the counsel for the Auction Purchaser insisted on its continuation. On perusal of the record, it appeared that the Auction Purchaser, K.Venkata Reddy, had participated in the auction held on 22.09.2003 and was declared the highest bidder for Rs.9,65,000/-. He had deposited one-fourth of the sale price on the date of auction but failed to pay the remaining three-fourths within fifteen days, thereby violated Order 21 Rule 85 of CPC. As the decree holder, judgment debtor, and claim petitioner were not interested in continuing the proceedings, and since the Auction Purchaser had committed default in payment, he could not insist on continuation of this petition. Although the Auction Purchaser contended that he had preferred civil revision petitions against the orders of this Court dated 17.04.2017, no stay had been granted by this Court, the petition was dismissed. 3. Heard Sri Salvaji Raja Shekar Rao, learned counsel for the petitioner, Sri K. Mohan, learned counsel for respondent No.5 and Sri P.Rama Sharana Sharma, learned counsel for respondent No.6.

4. The contention of learned counsel for the petitioner is that the trial Court ought to have seen that petitioner deposited an amount of Rs.2,41,250/- towards 1/4^th of the bid amount and an amount of Rs.29,030/- towards poundage totaling to Rs.2,70,280/- on the date of auction itself i.e., on 22.09.2003. Further the balance amount was deposited on 13.10.2003 with the permission of Court. As such, there is no default committed by the auction purchaser and the trial Court failed to consider the ex parte decree passed on 11.07.2002 and property was attached on 19.03.2003 whereas the claim petitioner filed claim petition claiming that he purchased property on 30.06.2003 i.e., subsequent to attachment which is not valid in law. The trial Court ought to have seen that dismissal without adjudicating the rights of auction purchaser and without setting aside the sale is not permissible in law and when the petitioner filed petition to restore the E.P., the trial Court observed that petitioner herein paid Rs.7,23,750/- towards balance amount which was not considered by the trial Court.

5. Learned counsel further submitted that the petitioner herein filed petition under Section 151 of CPC to restore the E.P. The same was allowed observing that auction purchaser deposited 1/4th amount on 22.09.2003 and the remaining amount on 13.10.2003 which was not considered by the trial Court. The respondents who are claim petitioner and his son alleged to have received the property under gift deed, has no locus standi to claim property as the claim petitioner purchased the property when there is an attachment order against the said property. Therefore, requested the Court to allow this revision petition by setting aside the impugned order.

6. On the other hand the implead petitioner-respondent No.6 vehemently opposed the petition stating that the date of auction i.e., 22.09.2003, and the auction purchaser has to pay the amount on 06.10.2003 whereas, he paid the amount on 13.10.2003 which is not in compliance of R.58 of Order 21 of CPC and this petitioner has no locus standi to pray the Court for restoration of E.P