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2023 DIGILAW 249 (AP)

Shaik Shahida v. Shaik Moulali

2023-01-31

SUBBA REDDY SATTI

body2023
JUDGMENT 1. Judgment debtor filed the above revision against the order dtd. 1/4/2022 in C.M.A.No.5 of 2018 on the file of V Additional District Judge, Vijayawada confirming the order dtd. 23/3/2018 in E.A.No.44 of 2013 in E.P.No.10 of 2012 in O.S.No.245 of 2009 on the file of II Additional Senior Civil Judge, Vijayawada. 2. Decree Holder filed suit O.S.No.245 of 2009 on the file of II Additional Senior Civil Judge, Vijayawada against the petitioner herein and three minor children for recovery of amount from the estate of husband of petitioner by name Galib Bude. Suit was decreed on 10/10/2011. Pending the suit, I.A.No.259 of 2009 was filed under Order XXXVIII Rule 5 of CPC and item Nos.1 to 4 shown in the petition schedule were attached. Pursuant to judgment and decree, E.P.No.10 of 2012 was filed under Order XXI Rule 64 of 66 of CPC. The executing Court ordered notices and they were served on petitioner and others (judgment debtors 1 to 4). Sri NSR, Advocate filed vakalat on behalf of respondents 1 to 4 as per docket endorsement dtd. 14/6/2012. Execution petition was adjourned from time to time for filing counter. On 10/9/2012 the executing Court adjourned the matter to 26/9/2012 for filing counter on payment costs of Rs.100.00. On 26/9/2012, P.O. is on leave and hence, it was adjourned to 19/10/2012. On 19/10/2012, neither costs was paid nor counter was filed. Even, there is no representation. Hence, the matter was adjourned to 3/12/2012 for settlement of terms. On 22/1/2013 counsel for decree holder filed a memo stating that item No.2 of E.P. schedule would be sufficient to satisfy the EP amount and hence, prayed to delete item No.1. Accordingly, auction was conducted in open Court on 22/1/2013. Bid was knocked down in favour of highest bidder D.Gangadhar for Rs.17, 50, 000.00. Auction purchaser paid 1/4th of bid amount i.e. Rs.4, 37, 500.00 including poundage of Rs.52, 545.00. 3. On 8/3/2013, petitioner filed E.A.No.44 of 2013 under Order XXI Rule 90 of CPC to set aside the sale. Petitioner also filed ASSR No.4961 of 2013 against the judgment and decree in O.S.No.245 of 2009 with a delay of 428 days. On 22/4/2013, in ASMP No.814 of 2013, the High Court directed the appellant to deposit 1/3rd of decretal amount within a period of six weeks and eventually, ASMP was dismissed on 24/8/2013. Petitioner also filed ASSR No.4961 of 2013 against the judgment and decree in O.S.No.245 of 2009 with a delay of 428 days. On 22/4/2013, in ASMP No.814 of 2013, the High Court directed the appellant to deposit 1/3rd of decretal amount within a period of six weeks and eventually, ASMP was dismissed on 24/8/2013. A review petition was filed and the same is pending consideration. The executing Court dismissed the E.A.No.44 of 2013 on 23/3/2018 and the sale was confirmed on 29/3/2018. Aggrieved by the same C.M.A.No.5 of 2018 was filed and the lower appellate Court dismissed the same by order dtd. 1/4/2022. Assailing the said order, the present revision is filed. 4. Heard Sri V.Rajanna, learned counsel for petitioner, Sri Sunkara Rajendra Prasad, learned counsel for 1st respondent-decree holder and Sri S.Rajendra Prasad learned counsel for D.Hr and Ms.Vangala Sailaja, learned counsel for 2nd respondent-auction purchaser. 5. Learned counsel for petitioner would submit that sale was not properly conducted and the same was vitiated. He would also submit that notice under Rule 66 was not properly served on the petitioner and others and hence, the sale is liable to be set aside. 6. On the other hand, learned counsel for decree holder and auction purchaser, supported the order of the Courts below. 7. Now, the point for consideration is: Whether the executing Court committed any irregularity in conducting sale of property in E.P.No.10 of 2012 in O.S.No.245 of 2009? 8. The undisputed facts, as per the record, are that decree holder filed suit O.S.No.245 of 2009 against the petitioner and three minor children for recovery of amount on the strength of promissory note said to have been executed by late Galib Bude. Decree holder also filed I.A.No.259 of 2009 seeking attachment of schedule properties. Accordingly, properties were attached on 20/3/2009 and the same was made absolute on 13/10/2009. Suit was decreed on 10/10/2011. E.P.No.10 of 2012 was filed under Order XXI Rules 64 to 66 of CPC. Notices were issued in execution and Sri NSR, Advocate filed vakalat on behalf of R1 to R4. Paper publication was made in Andhra Jyothi daily newspaper on 4/1/2013 for conducting sale. Eventually, sale was conducted in respect of item No.2 of E.P. schedule property i.e. item No.4 of property shown in I.A.No.259 of 2009. Notices were issued in execution and Sri NSR, Advocate filed vakalat on behalf of R1 to R4. Paper publication was made in Andhra Jyothi daily newspaper on 4/1/2013 for conducting sale. Eventually, sale was conducted in respect of item No.2 of E.P. schedule property i.e. item No.4 of property shown in I.A.No.259 of 2009. In fact, the decree holder filed a memo before the executing Court that item No.2 of property would be sufficient to satisfy the E.P. amount. 9. During the enquiry in E.A.No.44 of 2013, petitioner examined herself as P.W.1 and got marked Exs.A-1 to A-35. Decree holder examined himself as R.W.1 and got marked Ex.R-1. 10. The executing Court on a consideration of material available on record, dismissed the application by order dtd. 23/3/2018. 11. The property attached pending the suit was brought to sale. The judgment debtor failed to prove that she suffered substantial injury by way of publication or 1st respondent- decree holder committing fraud or material irregularity in proclamation. The value of item No.2 in the market value certificate, is mentioned as Rs.9, 66, 000.00. In Proclamation drawn by the Amin, the value is shown as Rs.10, 00, 000.00. Sale was knocked down for Rs.17, 50, 000.00. The executing Court on consideration of all these aspects, concluded that neither the sale was vitiated by fraud or material irregularity nor judgment debtors suffered substantial injury. 12. Against the said order, judgment debtor No.1 filed C.M.A.No.5 of 2018 on the file of V Additional District Judge, Vijayawada. Lower appellate Court on consideration of entire material available on record, dismissed the CMA by order dtd. 1/4/2022. 13. The main argument of learned counsel for petitioner is that notice under Rule 66 was not properly served. However, as pointed out supra, notice under Rule 66 was served on the judgment debtor and her minor children and Sri NSR, Advocate filed vakalat on their behalf, however, no counter was filed in spite of granting sufficient time. In fact, this Court also called for entire record in E.P.No.10 of 2012 and verified the docket proceedings. As can be seen from the docket proceedings in E.P.No.10 of 2012, notice under Rule 66 was duly served. 14. In Nerella China Venkata Subba Rao Vs. Gunda Anka Rao and Ors., 2015 (4) ALD 693 . In fact, this Court also called for entire record in E.P.No.10 of 2012 and verified the docket proceedings. As can be seen from the docket proceedings in E.P.No.10 of 2012, notice under Rule 66 was duly served. 14. In Nerella China Venkata Subba Rao Vs. Gunda Anka Rao and Ors., 2015 (4) ALD 693 . learned single Judge of the composite High Court held thus: "As seen from the above provision, it is clear that the sale of property in execution of the decree can be set aside only on the ground of a material irregularity or fraud in publishing or conducting the sale. 6. Admittedly, the case on hand does not fall under the second category viz., fraud in publishing or conducting the sale. The only ground available for setting aside the sale is material irregularity. Now, it has to be seen that when the decree holder has not shown the correct description of the property properly or the value is shown far less than the market value or the Sub- Registrar's value, whether it would amount a material irregularity. Sub-rule (3) of Rule 90 of Order XXI C.P.C. controls sub-rule (1) of Rule 90 C.P.C. Even if there is a material irregularity, sale cannot be set aside when such a plea has not been taken on or before the date on which the proclamation of sale was drawn up. Admittedly, the petitioner has not taken up these two contentions raised on or before the proclamation of sale was drawn up. Therefore, even assuming for a moment that it amounts to a material irregularity, for that reason sale of the property in auction cannot be set aside unless those grounds have been specifically taken on or before the date on which the proclamation of sale has been drawn up. So, precisely for that reason, the Executing Court by invoking Order XXI Rule 90(3) C.P.C. has dismissed the application and that order needs no interference by this Court as there is no illegality in passing the said Order." 15. In M/s Jagan Singh and Co. Vs. Ludhiana Improvement Trust and Ors., 2022 LiveLaw (SC) 733 . the Hon'ble Apex Court came to conclusion that no sale could be set aside unless the Court is satisfied that the applicant has sustained substantial injury by reason of irregularity or fraud in completing or conducting the sale. 16. In M/s Jagan Singh and Co. Vs. Ludhiana Improvement Trust and Ors., 2022 LiveLaw (SC) 733 . the Hon'ble Apex Court came to conclusion that no sale could be set aside unless the Court is satisfied that the applicant has sustained substantial injury by reason of irregularity or fraud in completing or conducting the sale. 16. Though the judgment debtor contended that property auctioned does not belong to her husband, no documents were filed to that effect. 17. Unless the judgment debtor proves that the sale was conducted because of fraud or irregularity in publishing proclamation of sale or substantial injury or non-issuance of notice, the sale cannot be set aside. In view of discussion made supra, this Court does not find any irregularity or substantial injury or fraud played by the decree holder. Hence, this Court does not find any illegality in the order passed by the Courts below warranting interference of this Court under Article 227 of the Constitution of India. 18. Accordingly, the Civil Revision Petition is dismissed at admission stage. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.