L. NARASIMHA REDDY, J. ( 1 ) THIS C. M. A is directed against an order passed by the Executing court, dismissing an application filed under rule 105 of Order XXI C. P. C. ( 2 ) THE subject-matter of the appeal is a money suit, and it has got a very long and chequerred career. The first respondent filed O. S. No. 253 of 1968 in the Court of i Additional Senior Civil Judge, Vijayawada, against the first appellant for recovery of a sum of Rs. 51,744/- on the strength of a receipt, dated 21. 8. 1968. An application under Order 38, Rule 5 C. P. C. , was filed and certain items of property were attached, during pendency of the suit. The first appellant denied his liability and disputed the genuineness of the receipt, dated 21. 8. 1968. The Trial Court decreed the suit on 30. 12. 1970. In A. S. No. 207 of 1971, the execution of the decree was stayed by this Court, subject to the condition that half of the decretal amount is deposited within three months. On the ground that the condition was not complied with, the first respondent filed E. P. No. 229 of 1971, for realization of Rs. 67,500/ -. The property comprising of 11 portions in an area of about 1200 square yards, was sold in the court auction on 24. 7. 1972, and the sale is said to have been confirmed on 29. 7. 1972. ( 3 ) THE appellant filed E. A. No. 1111 of 1972 under Rule 90 of Order XXI C. P. C. , as it stood then, to set-aside the sale. He pleaded that the sale was irregular; for the reasons, that adequate publicity was not given, upset price was fixed solely on the basis of the valuation given by the decree holder, the other intending bidders were discouraged and dissuaded by the decree holder, and that the auction purchaser was none other than the illatom son-in- law of the decree holder. The E. A was dismissed for default, on 29. 8. 1973. Thereupon, the appellant filed E. A. No. 1029 of 1973 to set-aside the order dismissing e. A. 1111 of 1972 for default. ( 4 ) DURING the pendency of E. A. No. 1029 of 1973, the first appellant died on 22. 11. 1973. The E. A was dismissed for default, on 29. 8. 1973. Thereupon, the appellant filed E. A. No. 1029 of 1973 to set-aside the order dismissing e. A. 1111 of 1972 for default. ( 4 ) DURING the pendency of E. A. No. 1029 of 1973, the first appellant died on 22. 11. 1973. A will dated 11-11-1972 was executed by him, bequeathing the property in question to his daughter, the second appellant. She filed E. A. No. 733 of 1974 seeking permission of the Court, to come on record as legal representative of the deceased 1st appellant. This E. A was dismissed for default on 19. 3. 1977, and consequently, E. A. No. 1029 of 1973 was also dismissed. She filed C. M. A. No. 362 of 1976 before this Court against the order in E. A. No. 1111 of 1972, and E. A. No. 330 of 1977, before the Executing Court to restore e. A. No. 733 of 1974. A Division Bench of this Court dismissed C. M. A. No. 362 of 1976. The Executing Court dismissed E. A. No. 330 of 1977 on 2. 8. 1978. ( 5 ) THE appellant filed C. R. P. No. 5744 of 1978 against the order in E. A. No. 330 of 1977. This Court allowed the C. R. P on 8. 8. 1980, and thereby her application under order XXII, Rule 3 C. P. C came to be revived. Thereafter, the Executing Court allowed the L. R application and consequently, E. A. No. 1029 of 1973 was restored. On 6. 12. 1994, the Executing court dismissed E. A. No. 1029 of 1973 on merits, and that order was challenged in c. R. P. No. 863 of 1995. The C. R. P was allowed on 6. 7. 2000, and the matter was remanded for fresh disposal. On such remand, the Executing Court dismissed e. A. No. 1029 of 1973, through order dated 13-2-2001. The same is the subject-matter of this appeal. ( 6 ) LEARNED Senior Counsel for the appellant Sri S. Satyanarayana Prasad, submits that the sale in execution is vitiated on account of several illegalities and irregularities and that the first appellant, who was aged 85 years by that time, made all his efforts to bring the same to the notice of the Executing Court. ( 6 ) LEARNED Senior Counsel for the appellant Sri S. Satyanarayana Prasad, submits that the sale in execution is vitiated on account of several illegalities and irregularities and that the first appellant, who was aged 85 years by that time, made all his efforts to bring the same to the notice of the Executing Court. He submits that in spite of his old age and failing health, the first appellant attended the Executing Court to give evidence in e. A. No. 1029 of 1973, but on account of his sudden seriousness, and motions he had to leave the Court. He contends that eves while leaving the Court, he instructed one of his Advocates to submit an application for adjournment, and the Executing Court did not accede to the request. It is also his contention that when the Advocate on record reported no instructions, it was incumbent upon the Executing Court to have issued notice to the first appellant, and that the order under appeal cannot be " sustained. ( 7 ) LEARNED Senior Counsel further submits that though an appeal preferred to this Court against the order in E. A. No. 1111 of 1972 was dismissed, it does not operate as a bar to pursue the remedy under rule 105 of Order XXI C. P. C. , in view of specific observations made, and findings recorded by this Court in C. R. P. No. 5744 of 1978, between the same parties. He urges that the lack of bona fides in the entire proceedings is evident from the fact that the sale consideration is still in deposit with the Court and that the decree- holder did not choose to withdraw it. Learned Counsel made several submissions touching on the merits of the validity of sale and has relied upon various judgments rendered by Supreme Court and this Court, in support of his contentions. ( 8 ) SRI V. S. R. Anjaneyulu, learned counsel for the respondents, on the other hand submits that, the sale conducted by the executing Court did not suffer from any illegalities or infirmities and that the first appellant protracted the proceedings on one pretext or the other. He submits that e. A. No. 1111 of 1972 was dismissed for default, after the 1st appellant was given adequate and ample opportunity and that no exception can be taken to the order under appeal. He submits that e. A. No. 1111 of 1972 was dismissed for default, after the 1st appellant was given adequate and ample opportunity and that no exception can be taken to the order under appeal. ( 9 ) SRI Anjaneyulu further submits that once the order passed in an application filed under Rule 90 of Order XXI C. P. C. , was upheld by a Division Bench of this Court in an appeal filed under Order 43, Rule 1 c. P. C. , it is no longer open for the appellant herein to pursue the proceedings in relation to the same. He contends that more than three decades have elapsed since the sale, and any interference at this stage will cause serious hardship to the respondents. ( 10 ) THE various proceedings referred to above arose out of a sale conducted by the Executing Court, for execution of the decree in O. S. No. 253 of 1968, dated 30. 12. 1970. The first appellant was the sole judgment-debtor therein. He pleaded several grounds in his application filed under Rule 90 of Order XXI C. P. C. However, it was dismissed for default on 29. 8. 1973. Thereafter, several applications, l. R. petitions, revisions, and appeals came to be filed. The present proceedings can be said to be in the third round. One strong objection raised by the learned Counsel for the respondent is, as to the maintainability of the C. M. A. , or for that matter, E. A. No. 1029 of 1973, in view of the orders passed by this Court in C. M. A. No. 362 of 1976, dated 15. 12. 1977. ( 11 ) A Division Bench of this Court upheld the dismissal of E. A. No. 1111 of 1972 for default in C. M. A. No. 362 of 1976. If the things stopped there, the present appeal would certainly have been treated as not maintainable. One development, which has a direct bearing on the issue, has taken place. On the death of the first appellant, the second appellant filed L. R application to come on record, being E. A. No. 733 of 1974. It was dismissed for default. She filed E. A. No. 330 of 1977 for restoration of E. A. No. 733 of 1974. This was dismissed by the Executing Court on merits. She filed C. R. P. No. 5744 of 1978 before this court. It was dismissed for default. She filed E. A. No. 330 of 1977 for restoration of E. A. No. 733 of 1974. This was dismissed by the Executing Court on merits. She filed C. R. P. No. 5744 of 1978 before this court. ( 12 ) THE respondents raised a specific objection as to the maintainability of the subsequent proceedings, in view of the dismissal of C. M. A. No. 362 of 1976. The objection was overruled with the following observation:"i am not satisfied that E. A. No. 1029 of 1973 ought to be allowed to lapse or abate, as the case may be without an enquiry. It should also be noticed that the revision- petitioner has been representing the estate of the judgment-debtor from the earliest opportunity. As pointed out above, C. M. A. No. 362 of 1976 was filed by the revision petitioner herself as the sole legal representative of the deceased judgment- debtor. She had also filed E. A : No. 733 of 1974 to add her as the legal representative, in the execution proceedings. In these circumstances, there is no point in saying that she is not entitled to seek to be brought on record as the legal representative of the judgment-debtor". ( 13 ) THE first respondent is a party to the C. R. P. , and he did not challenge the order passed therein. Subsequent to this, several orders came to be passed by the executing Court as well as this Court, which were otherwise impermissible if the order in C. M. A. No. 362 of 1976 were to have held the field. Even if any right can be said to have accrued to the respondents on the basis of the order in c. M. A. No. 362 of 1976, they are deemed to have waived it with their participation in the subsequent proceedings such as the one in E. A. No. 733 of 1974, and C. R. P. No. 863 of 1995. ( 14 ) LEARNED, Counsel for the respondents relies upon an unreported judgment, dated 22. 3. ( 14 ) LEARNED, Counsel for the respondents relies upon an unreported judgment, dated 22. 3. 2004, rendered by a division Bench of this Court in A. S. No. 2662 of 1988, and submits that, if a party avails remedy under Order IX C. P. C. , against the order of dismissal for default or an ex parte decree, the order passed therein, including the one in appeal arising out of it, would disentitle him to seek the remedy of regular appeal. Firstly, such broad proposition is not discernible from the said judgment. Secondly, the facts in both the cases are different. That case arose in the following circumstances: The suit was decreed without the participation of the defendant. He filed an application under Rule 13 of Order IX C. P. C. , on the assumption that it is an ex parte decree. The Trial Court rejected the application, on taking the view that the suit was not decreed ex parte, and that it is on merits. The same was upheld in C. M. A filed under order 43, Rule 1 C. P. C. Thereafter, the defendant filed a regular appeal, under section 96 C. P. C. In that appeal, he reiterated his plea that the Trial Court decreed the suit ex parte. The contention was rejected by the Division Bench, and it was held that the findings recorded as to the nature of the decree, in earlier proceedings bind the parties. The facts in the instant case are totally different. In fact, the order in C. R. P. No. 5744 of 1978 discloses that e. A. No. 330 of 1977 was allowed by mutual consent. Therefore, the objection raised by the respondents as to the maintainability of the present C. M. A cannot be sustained. ( 15 ) IN his application filed under rule 105 of Order XXI C. P. C. , the first appellant stated the circumstances, under which he could not appear before the executing Court. He stated that he is above 80 years of age, was suffering from sickness for the past two years and was residing at Annavaram in East Godavari district. He stated that he received a letter from his Advocate requiring him to appear before Court on 29. 8. 1973, and accordingly, he came from Annavaram to Vijayawada to attend the Court. He stated that he is above 80 years of age, was suffering from sickness for the past two years and was residing at Annavaram in East Godavari district. He stated that he received a letter from his Advocate requiring him to appear before Court on 29. 8. 1973, and accordingly, he came from Annavaram to Vijayawada to attend the Court. He further stated that he developed further illness and had motions with severe heartbeat, was unable to sit in the Court, and therefore left for his residence at Kothapet, vijayawada. He stated that he took treatment from Dr. K. Krishna Rao, and was bedridden for 20 days thereafter. ( 16 ) THE counter-affidavit filed by the respondents was more of a denial. They have also stated that, having been vexed with the non-co-operation of the first appellant; the Advocate reported no instructions, and the Court accordingly dismissed the petition. ( 17 ) E. A. No. llll of 1972 was dismissed on 29. 8. 1973 with the following order:"respondent ready. Petitioner not ready. Adjournment petition is rejected. S. C. S. filed a memo reporting no instructions. Petitioner is called absent. Petition dismissed. "from a reading of this order, it is evident that three circumstances existed, from the point of view of the 1st appellant. The first is that he was not present. The second is that an application for adjournment was filed on his behalf. Lastly, the Counsel engaged by him reported no instructions. Therefore, it needs to be seen whether the Executing Court was justified in dismissing the application filed under Rule 90 of Order XXI C. P. C. , under these circumstances. ( 18 ) THE sale of immovable property of a judgment-debtor is an extreme and ultimate step in a suit for recovery of money, while every effort is required to be taken, to ensure that the decree is implemented, necessary precautions need to be taken before bringing the property of the judgmentdebtor to sale. The C. P. C provides for several in-built safeguards for this purpose. Any infraction of the steps that are to precede the sale, are held to be fatal. Since the validity or otherwise of the sale is not the subject-matter of this appeal, it is not felt necessary to refer to the various judgments touching on that aspect, though cited by the parties. Any infraction of the steps that are to precede the sale, are held to be fatal. Since the validity or otherwise of the sale is not the subject-matter of this appeal, it is not felt necessary to refer to the various judgments touching on that aspect, though cited by the parties. ( 19 ) THE sale took place in the year 1972. The rights of a judgment debtor to challenge the sale by filing an application under Rule 90 of Order XXI C. P. C. , were much wider in scope, before the Rule was amended in the year 1976. The unamended provisions apply to the present case. The first appellant ought to have been shown little more latitude having regard to his age, value of the property and nature of objections raised by him. He pleaded that he crossed 80 years of age, his wife died, his sons betrayed him, his son-in-law joined hands with the decree holders, so much so, figured as a witness on their behalf and that he was residing at annavaram. It was not as if the interests of the respondents were in any jeopardy. Vast extents of very valuable properties situate in Vijayawada were got attached before judgment in the year 1968 itself. The sale was already conducted. By the time, E. A. No. llll of 1972 was filed, the sale is said to have already been confirmed. It was not as if the first appellant protracted that E. A. Hardly, within one year from the date of filing, it was dismissed with the order extracted above. ( 20 ) RULE 1 of Order 17 C. P. C provides for grant of adjournments. When a party is required to be present in the Court to depose as a witness and he specifically pleads illness, the Court is required to record reasons in negativing the request. It is true that an adjournment cannot be claimed as of right, and the Court should be cautious in granting adjournments. However, where the circumstances are such that the party is virtually disabled from appearing the Court, the Court cannot act in a mechanical way. In such cases, it has to record reasons, for negativing such relief. Denial of adjournment, by a Court, even where a party pleads real hardship or difficulty, is as bad as, if not worse than, indiscriminate grant of adjournments. In such cases, it has to record reasons, for negativing such relief. Denial of adjournment, by a Court, even where a party pleads real hardship or difficulty, is as bad as, if not worse than, indiscriminate grant of adjournments. The effort should be to ensure that the parties receive an adjudication of the matter as far as possible, on merits. The reason is that if the suit or an application is dismissed on account of non-appearance, the relief claimed in the suit or petition stands rejected to him, without examination of the case on merits or with reference to law, and the grievance or dispute still subsists. In this case, the Executing Court did not exhibit reasonable care and caution before it rejected the application filed by an octogenarian, complaining of gross misuse of the process of law, resulting in injustice to him. ( 21 ) WHATEVER may have been the justification for the Executing Court in using its discretion to reject the request for adjournment, it was not justified in dismissing the application, when an Advocate engaged by the first appellant reported no instructions. Once a party engages a counsel in proceedings before the Court, he is represented through the said Counsel. Execution of a vakalath in favour of such counsel enables the continuance of such relations not only till the proceedings terminate, but also upto certain stages subsequent thereto. If vakalath is filed in a suit, it will enable the Counsel to receive notices or to take further proceedings in the suit and in matters such as review, after the suit is disposed of. In case it is filed in an appeal in the High Court, it enables the Counsel to take steps not only in the appeal, but also in further appeal under Clause 15 of the Letters Patent and to file application seeking leave to approach the Supreme Court, apart from participating in review applications. The authorization so given can be terminated, either at the instance of the party or the Counsel. ( 22 ) WHERE the Counsel chooses to terminate his engagement and reports no instructions to the Court, the proceedings cannot be brought to an abrupt end, to the disadvantage of the party concerned. There may be variety of reasons for reporting no instructions. ( 22 ) WHERE the Counsel chooses to terminate his engagement and reports no instructions to the Court, the proceedings cannot be brought to an abrupt end, to the disadvantage of the party concerned. There may be variety of reasons for reporting no instructions. In such an event the omission on the part of the Counsel to represent the party cannot draw a curtain for the proceedings, vis-a-vis, such party once for all. The minimum that Court can do to such parties, is to give them an opportunity to explain as to what prompted such a situation and to take further steps, if he chooses. Though there is no provision in the C. P. C or any other relevant enactment providing for issuance of notice by the Court, in the event of Counsel reporting no instructions; fairness in procedure and maintenance of high standards of professional ethics, requires such a course to be adopted. ( 23 ) IT was in this context that the supreme Court in Malkiat Singh and another v. Joginder Singh and others, 1998 (1) ALD (SCSN) 10 = JT 1997 (9) SC 642, held that whenever a Counsel reports no instructions, the Court shall issue notice to the party, whom such Counsel represented, and that no orders adverse to the interests of such party, can be passed straightaway. Viewed from this angle, the course adopted by the Executing Court cannot be sustained. The order itself discloses that the Counsel for the appellant reported no instructions and on the same day, the E. A. was dismissed. The Court did not chose to issue any notice to the first appellant. ( 24 ) AS observed earlier, during pendency of the application, 1029 of 1973, the first appellant died. His sole legal representative, the second appellant came on record. She deposed as PW-1 and narrated the circumstances under which, her father could not give evidence having come all the way from Annavaram, exclusively for that purpose. She categorically stated that she accompanied her father to the Court on 29. 8. 1973, and since he developed fever and loose motions, she has taken him to their house, as he was not in a position to give evidence. She has also stated that her father was treated by pw-2, and was bedridden for about 20 days. She categorically stated that she accompanied her father to the Court on 29. 8. 1973, and since he developed fever and loose motions, she has taken him to their house, as he was not in a position to give evidence. She has also stated that her father was treated by pw-2, and was bedridden for about 20 days. The medical certificate was already filed along with the petition and it is marked as Ex. A - 1 Nothing was elicited from her in the cross-examination to discredit her version. PW - 2 is the Doctor who treated the first respondent. The letter received by the first appellant for attending the Court was also marked as ex. A-2. ( 25 ) THE evidence of RW-1, in fact supports the claim of the appellants. He stated that when E. A. No. 1111 of 1972 was called, a representation was made through an Advocate-clerk, on behalf of the first appellant, and when it was called one hour thereafter, an application was filed through an Advocate. He has also stated that the Advocate, who filed the application for adjournment, was directed to call the first appellant and the case was passed over. Thereafter, the Counsel for the petitioner is said to have filed a memo reporting no instructions, and on that, the application was dismissed. RW-1 has not stated that the matter has undergone several adjournments or that there was non-co-operation on the part of the first appellant. The order passed in E. A. No. 1111 of 1972, does not give any such indication. ( 26 ) ONE important aspect which needs to be noted is that though the amount was deposited in the Executing court, way back in the year 1972, the same is said to be still lying there and that the respondents have not chosen to withdraw it. The assertion of the Counsel for the appellants in this regard is not disputed by the Counsel for the respondents, this discloses that the effort of the respondents, prima facie, appears to be only to knock away the property, than to realize the suit amount. Learned Counsel for the respondent submits that the property i has since been transferred to third parties. On verification, it emerged that while the initial auction purchaser was the illatom son-in-law of the decree holder, the subsequent purchasers are the sons of the latter. Learned Counsel for the respondent submits that the property i has since been transferred to third parties. On verification, it emerged that while the initial auction purchaser was the illatom son-in-law of the decree holder, the subsequent purchasers are the sons of the latter. It is also not in dispute that substantial extent of the sold property is still in the possession of the second appellant. ( 27 ) IN Hindi Pracharak Prakashan v. M /s. G. K. Brothers, AIR 1990 SC 2221 , it was held that where the sale proceeds in an auction sale remained in the Court for ten years without being invested, the best and reasonable course is to set-aside the sale, and to compensate the auction purchaser with compensation with interest at 12% p. a. This, however, is a measure which needs to be considered when E. A. No. 1111 of 1972 is to be dealt with on merits. Reference to this decision is made to indicate that in such cases, necessary steps are to be taken to protect the interests of both the parties. ( 28 ) FOR the foregoing reasons, the c. M. A is allowed. The order under appeal is set-aside and E. A. No. 1029 of 1973 stands, allowed. The order, dated 29. 8. 1973 dismissing E. A. No. 1111 of 1972 is set- aside, and the said E. A. is restored to file. It shall be adjudicated on merits uninfluenced by any observations made herein. E. A. was filed before Rule 90 of Order XXI C. P. C was amended. Hence, it shall be decided in accordance with the unamended Rule 90 of order XXI C. P. C. ( 29 ) SINCE the respondents have parted with the sale consideration of Rs. 67,500/- about 30 years back, it is directed that the 2nd appellant shall deposit a sum of rupees five lakhs into the Executing Court, within a period of two months from the date of receipt of record by the Executing court. The Executing Court shall hear the e. A. No. 1111 of 1972 only after such deposit. In case, the sale is set-aside, the executing Court shall pass an order for refunding the sale consideration, which is already in deposit in the Court together with interest calculated in accordance with the principles laid down in Hindi Pracharak prakashan s case (supra ). In case, the sale is set-aside, the executing Court shall pass an order for refunding the sale consideration, which is already in deposit in the Court together with interest calculated in accordance with the principles laid down in Hindi Pracharak prakashan s case (supra ). The amount of interest shall be paid from the sum of Rs. 5 lakhs, that may be deposited by the appellant. On the other hand, if EA No. 1111 of 1972 is dismissed, the amount deposited by the appellant shall be refunded to her. The E. A. shall be disposed of within three months from the date of deposit of the amount, as directed above. There shall be no order as to costs.