Tallluri Venkatachary, Krishna ... vs Vajrala Venkateswara Reddy, ...
2022 Latest Caselaw 3868 AP

        THE HONOURABLE SRI JUSTICE K. SURESH REDDY

                         C.M.S.A NO.41 of 2015

JUDGMENT:-

      The unsuccessful Judgment Debtor before both the Courts below

filed the present Civil Miscellaneous Second Appeal before this Court.


      Heard Sri Sai Gangadhar Chamarty, learned Counsel for the

appellant and Sri. P. Nagender Reddy, learned counsel for the

respondent.

The brief facts of the case are as follows:

The appellant/Judgment debtor borrowed certain amounts from

the respondent/Decree Holder by mortgaging EP schedule property.

Thereafter, the respondent filed a suit and preliminary decree was

passed on 24.02.2010. Thereafter, final decree was passed on

26.04.2010. Thereafter, the respondents filed EP 32 of 2010 in

O.S.No.141 of 2005 seeking execution of the final decree.

In Execution Petition, after following the procedure, the settlement

of terms were ordered on 16.08.2011. The Decree Holder furnished

value, mentioning the value of suit schedule property as Rs. 3,00,000/-

and Amin's value was mentioned as Rs. 3,50,000/-. The

appellant/J.Dr having entered his appearance on 03.06.2011 and after

obtaining sufficient adjournments, he did not choose to file his

objections. Even at later stage also, he neither appeared nor filed any

document to show the value of EP schedule property. As per the

certificate issued by S.R.O Mylavaram, the market value of the property

was mentioned as Rs. 2,92,740/-. The Executing Court fixed the upset

price as Rs.3,50,000/-. The respondent/D.Hr, participated in the

auction after obtaining permission and he became the highest bidder

for Rs. 4,05,000/-. The highest bidder/D.Hr paid one-fourth of the bid

amount on the same day i.e., on 08.11.2011. Thereafter, he paid the

entire bid amount.

While so, the appellant filed E.A.No.33 of 2013 in E.P.No.32 of

2010 under Order XXI Rule 90 read with section 151 of C.P.C to set

aside the sale conducted on 08.11.2011. The said application was

dismissed, by order dated 29.04.2013 by the Executing Court.

Aggrieved by the said order, the appellant/D.Jr filed appeal in

CMA.No.08 of 2013 on the file of the Court of XV Additional District

Judge Nuzvid, Krishna District, which was also dismissed by order

dated 04.08.2015. Aggrieved by the same, the appellant/J.Dr filed the

present appeal.

This Court perused the entire material on record. At the outset

this Court finds that application under Order XXI Rule 90 of C.P.C

cannot be entertained after sixty days from the date of auction i.e., from

08.11.2011. The appellant/J.Dr filed this application under Order XXI

Rule 90 of C.P.C after a lapse of one year four months. On this ground

alone, the present CMSA is liable to be dismissed. Apart from that,

there are no irregularities or fraud on the part of the respondent before

the Executing Court. The appellant/J.Dr did not participate in the

enquiry before the Executing Court.

In that view of the matter, there are no grounds to interfere with

orders passed by both the Courts.

Accordingly, the present CMSA is dismissed as devoid of any

merit. There shall be no order as to costs.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Writ Petition shall stand closed.

_____________________ K. SURESH REDDY, J

Date: 11.07.2022

SKB

THE HONOURABLE SRI JUSTICE K. SURESH REDDY

C.M.S.A.No. 41 of 2015

11.07.2022

SKB