HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.3096 OF 2023

ORDER:

Questioning the legality and validity of the order dated

12.09.2023 passed in E.A.No.20 of 2020 in E.P.No.515 of 2022 (Old E.P.No.136 of 2013) in OS.No.2405 of 2008 on the file of the Principal Senior Civil Judge, Medchal-Malkajgiri District, at Malkajgiri, the present Revision Petition is filed.

2. Heard Smt A.V.S.Laxmi, learned counsel for revision petitioner, Ms. Amrutha Sanjeeva, learned counsel for respondent No.1 and Sri M.Roopender, learned counsel for respondent No.2.

3. The petitioner herein is judgment debtor, respondent No.1 is decree holder and respondent No.2 is Auction Purchaser in the Execution Petition.

4. The succinct facts of the case are that the suit filed by respondent No.1 for recovery of a sum of Rs.2,44,000/- against the petitioner was dismissed vide Judgment and Decree dated 31.05.2010. Aggrieved by the same, respondent No.1 preferred appeal vide A.S.No.270 of 2010 before III Additional Chief Judge, City Civil Court, Hyderabad, and the said Appeal was allowed with costs vide judgment and decree dated 15.02.2011. Pursuant thereto, respondent No.1 filed E.P.No.136 of 2013 for the execution of decree by way of sale of house property of the petitioner and the said EP was subsequently re-numbered as EP.No.515 of 2022. In the said EP, an auction was conducted on 24.08.2017, in which, several bidders participated and Respondent No.2 being the highest bidder was declared as the successful bidder.

5. Initially, the petitioner filed E.A.No.1036 of 2017 under Order XXI Rule 90 of C.P.C. to set aside the sale on the ground that the said sale is vitiated by fraud, however, the same was dismissed on 27.01.2020. Later, the petitioner seeking the same relief as sought for in EA.No.1036 of 2017, again filed another E.A.No.20 of 2020, under Order XXI Rule 89 of C.P.C., on the ground of non-deposit of sale amount by the successful bidder. The Executing Court, upon hearing both the parties, dismissed the said application, vide order dated 12.09.2023, by observing that at the first instance, the petitioner failed to show his readiness to deposit the decretal amount within the stipulated period and has filed the present application after a lapse of three years from the date of sale, that too, after dismissal of the earlier E.A. Aggrieved by the same, the judgment-debtor filed the present Revision Petition.

6. The short issue that arises for consideration is as to whether the judgment-debtor could have maintained the application under Order XXI Rule 89 of C.P.C. even after dismissal of the earlier application in E.A.No.1036 of 2017, filed under Order XXI Rule

90 of C.P.C. seeking to set aside the sale on the ground of fraud.

7. Learned counsel for the petitioner submitted that the petitioner filed the application under Order XXI Rule 89 of CPC along with deposit of Rs.5,10,000/- including 5% of the purchase money by way of D.D. dated 27.02.2020, as against the sum of Rs.5,02,572/- required to be deposited, as such, the petitioner has complied with the requirement under Order XXI Rule 89 CPC by depositing the entire EP amount and hence, learned counsel prayed to set aside the auction sale. Learned counsel further submitted that the applications filed by the petitioner under Order XXI Rule 89 CPC and Order XXI Rule 90 of C.P.C. reflect different scenarios and are filed on distinct grounds for setting aside the auction sale, however, the Executing Court has miserably failed to consider the same in proper perspective and erred in dismissing the said applications.

8. Per contra, learned counsel for respondent No.1-decree-holder submitted that the petitioner/judgment-debtor has failed to comply with the conditional order passed by this Court in SAMP.No.1076 of 2011 in SA.No.426 of 2011, whereby interim stay was granted subject to the petitioner depositing 50% of the decretal amount, within a period of eight weeks therefrom, as such, the said orders