Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 46 (AP)

P. Ranemma v. P. Annaiah

2011-01-27

V.V.S.RAO

body2011
ORDER This revision is filed against the order dated 07.09.2010 in E.A.No.112 of 2010 in O.E.P.No.26 of 2010 in O.s.No.71 of 2003 on the file of the Court of the Principal Junior Civil Judge, Madanapalle. The petitioner is the judgment debtor No.3 (TDr.3) in the said execution petition. 2. The brief fact of the matter is as follows. One P.Jagadeeswara Singh filed O.S. Non of 2003 against the petitioner and respondent Nos.2 and 3 (JDrs 1 and 2) for recovery of money. The trial Court passed decree on 17.06.2003. The decree holder (DHr)- first respondent herein, took out execution in O.E.P.No.272 of 2003 for Rs.25,718/- for attachment and sale of the immovable property of JDrs. The house property (EP schedule property) of the JDrs was attached and brought to sale. Decree holder purchased the property in the Court auction for a sum of Rs.5,25,000/-. The sale became final and it was confirmed. The Court below issued sale certificate dated 17.03.2010 in favour of the first respondent herein. 3. The first respondent filed O.E.P.No.26 of 2010 seeking delivery of possession. In the said O.E.P the petitioner filed E.A.No.112 of 2010 purportedly under Order XXI Rules 89 (a) and 101 of the Code of Civil Procedure, 1908 (CPC), seeking permission of the Court to deposit the entire E.P amount with poundage for setting aside the sale certificate dated 17.03.2010. The same having been dismissed by the impugned order, the petitioner is before this Court. The Counsel for the petitioner vehemently contends that the property which was sold in the Court auction is worth about Rs.20,00,000/-, but the Court below confirmed the sale in favour of the first respondent for an amount of Rs.5,25,000/-. It is also the submission of the Counsel that even though the petitioner deposited the decree amount into the Court, the Court below erred in observing that the petitioner is not in a position to deposit the amount although the petitioner filed a lodgment schedule in the Court. 4. This revision is filed under Section 115 of CPC. Such a revision would lie when the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. 4. This revision is filed under Section 115 of CPC. Such a revision would lie when the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The case is not one which is concerned with the non exercise or exercise of jurisdiction vested in the Court below. The case rests on the ground that the impugned order is vitiated by illegality or material irregularity. To show that such ground exists for interfering with the order, it is for the petitioner to show that the application was presented properly in accordance with law and that the Court below has failed to consider any of the material. On this score, the petitioner has failed before this Court. Rules 89 and 92 of Order XXI CPC read as under. 89. Application to set aside sale on deposit- (1) Where immovable property has been sold in execution of a degree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court,- (a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and (b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree- holder. (2) Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. 92. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. 92. Sale when to become absolute or be set aside- (1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute: Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. (2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within sixty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby. Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002. (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made. (4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decree-holder and the judgment debtor shall be necessary parties to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered. 5. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered. 5. A plain reading of these provisions would show that the sale conducted by the Court in execution of decree shall become final and absolute when no application under Rules 89, 90 or 91 of Order XXI of CPC are made. Any person having interest in the property sold at the time of sale may apply to the Court to set aside the same on depositing for payment to the purchaser a sum equal to 5% of the purchase money and for payment to the decree holder the amount satisfied (sic. specified) in the proclamation of sale. Such amount has to be deposited within a period of sixty days. In this case admittedly the sale certificate was issued on 17.03.2010 and the petitioner did not file any application within sixty days. Dealing with this aspect, the Court below recorded a finding as under. As per Order 21, Rule 92(2), C.P.C., where such application under Rule 89 or Rule 90 or Rule 91 is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within sixty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale. So, as per this Rule, the amount has to be deposited within 60 days from the date of the sale. Since the sale of the E.P.Schedule House was held on 24.04.2009, the amount ought to have been deposited within 60 days from that day, and it would come around 24.06.2009. The present petition itself is filed on 05.05.2010. So, the relief sought for in the present petition is clearly barred under law. 6. Since the sale of the E.P.Schedule House was held on 24.04.2009, the amount ought to have been deposited within 60 days from that day, and it would come around 24.06.2009. The present petition itself is filed on 05.05.2010. So, the relief sought for in the present petition is clearly barred under law. 6. The Court below also observed that the petitioner and other JDrs are hampering the process of execution of the decree by filing one petition or the other and that they have not evinced any interest. As seen from the chronology of events as above, the petitioner had an opportunity at the time of proclamation of sale, at the time of sale and at the time of issue of sale certificate to come forward and avail Order XXI Rule 89 read with Rule 92 of CPC. Having failed to do so, the petitioner probably made last effort to stall the delivery of possession. In that view of the matter, the Court below was correct in dismissing the application. This Court does 1 not find any illegality or material I irregularity in the impugned order. 7. The Civil Revision Petition is, therefore, dismissed. There shall be no order as to costs.