Andhra Pradesh High Court - Amravati
Panda Venkata Rao Died 3 Othrs vs Padyala Venugopala Prasad, ... on 28 November, 2022
Bench: B V Chakravarthi
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
C.R.P. No.442 OF 2013
Between:
1. Panda Venkata Rao (died)
2. Panda Latha Devi, W/o (late) Panda Venkata Rao,
Aged 75 years, Hindu, Occ: Retired Teacher,
R/o Galivaripalem Village, Nagaram Mandal,
Guntur District.
3. Panda Sridhar Babu, S/o (late) Panda Venkata Rao,
Aged 49 years, Hindu, Teacher,
R/o Galivaripalem Village, Nagaram Mandal,
Guntur District.
4. Dr. Nitya Raveendran,
W/o Thogula Rama Murthy Raveendran,
Aged 47 years, Hindu, Occ: Scientist,
R/o H.No.68, 4th Street, Chennai-603102.
....Petitioners/
Decree Holders.
Versus
Padyala Venugopala Prasad,
S/o Subba Rao, Aged 50 years,
Occ: Cultivation, R/o Pudivada Village,
Nagaram Mandal, Guntur District.
....Respondent/Judgment Debtor.
DATE OF JUDGMENT PRONOUNCED : 28.11.2022
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Judgment? Yes/No
_____________________________
B.V.L.N.CHAKRAVARTHI, J
BVLNC, J CRP No.442 of 2013
Page 2 of 19 Dt.28.11.2022
* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ Writ Petition No.34237 OF 2022
% 28.11.2022
# Between:
1. Panda Venkata Rao (died)
2. Panda Latha Devi, W/o (late) Panda Venkata Rao,
Aged 75 years, Hindu, Occ: Retired Teacher,
R/o Galivaripalem Village, Nagaram Mandal,
Guntur District.
3. Panda Sridhar Babu, S/o (late) Panda Venkata Rao,
Aged 49 years, Hindu, Teacher,
R/o Galivaripalem Village, Nagaram Mandal,
Guntur District.
4. Dr. Nitya Raveendran,
W/o Thogula Rama Murthy Raveendran,
Aged 47 years, Hindu, Occ: Scientist,
R/o H.No.68, 4th Street, Chennai-603102.
....Petitioners/
Decree Holders.
Versus
Padyala Venugopala Prasad,
S/o Subba Rao, Aged 50 years,
Occ: Cultivation, R/o Pudivada Village,
Nagaram Mandal, Guntur District.
....Respondent/Judgment Debtor.
! Counsel for the Appellant :
Sri Nimmagadda Satyanarayana
^ Counsel for the
Respondents Nos.1 to 4 : Sri N.V.Anantha Krishna
BVLNC, J CRP No.442 of 2013
Page 3 of 19 Dt.28.11.2022
< Gist:
> Head Note:
? Cases referred:
1. 1998 (3) ALD 404
2. 2015 (1) ALD (SC) 1
3. (2020) 5 Supreme Court Cases 449
4. (2006) 3 SCC 49
5. AIR 1964 SC 1300
This Court made the following:
BVLNC, J CRP No.442 of 2013
Page 4 of 19 Dt.28.11.2022
THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CIVIL REVISION PETITION NO.442 OF 2013
O R D E R:
This Civil Revision Petition is filed by the Decree
Holder/Plaintiff under Section 115 of C.P.C., against the order,
dated 05.11.2012, in C.M.A. No. 5 of 2010 on the file of the
Appellate Court below i.e., Senior Civil Judge Court, Repalle,
Guntur District.
2. The parties herein after will be referred to as
'petitioner'/judgement debtor and 'respondent'/decree holder as
arrayed before the appellate court in C.M.A. No. 5/2010.
3. The facts leading to the present revision petition are
that the respondent/decree holder filed suit in O.S.No.286 of
2000 on the file of Prl. Junior Civil Judge Court, Repalle and
obtained a Decree for Rs.1,12,044/-. The respondent filed EP 5
of 2003 to attach Ac.3.56 cents of petitioner, and to sell the
same property for Rs.6,12,000/- against the warrant amount of
Rs.1,17,522/-, for realization of the decretal amount. The value
of the schedule property per acre as per the Government is
Rs.4,66,360/-. The market value of the entire schedule property
BVLNC, J CRP No.442 of 2013
Page 5 of 19 Dt.28.11.2022
was more than Rs.25 lakhs @ Rs.7 lakhs per acre. The
executing court ought to have Ac.1.00 itself which would be
sufficient to satisfy the warrant amount of Rs.1,17,522/-. But
the Executing Court violated the provisions of Order 21, Rule 64
of the Code of Civil Procedure, 1908 (for brevity hereinafter
referred to as 'CPC') and sold the entire property. Hence, the
respondent filed E.A. No.34 of 2010 in E.P.No.5 of 2003 in
O.S.No.286 of 2000 before the executing court to set aside the
sale.
4. The respondent/decree holder filed a counter
denying all the material averments in the petition-affidavit, and
further contended that in the attachment petition the J.Dr.,
took plea that the property does not belongs to him. However,
such objection was overruled and notice under Order 21, Rule
66 CPC was issued. On receipt of the said notice, the J.Dr.,
made his appearance, and on merits orders were passed. The
J.Dr., got filed a claim petition in E.A. No. 132 of 2004 through
his mother, sisters and brother and the same was also
dismissed. At the time of conducting sale, the J.Dr., did not
raise any such objection. The sale was conducted in accordance
with the provisions of law. The present application is barred by
law of limitation and liable to be dismissed with costs.
BVLNC, J CRP No.442 of 2013
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5. No oral or documentary evidence was adduced by
both the parties in the execution application before the
executing court. Executing Court dismissed the application.
6. The Appellate Court below on hearing both sides
and considering the material on record, opined that the sale
conducted by the Executing Court on 15.11.2005 was not in
accordance with law as there was a material irregularity and
and set aside the sale.
7. Now, the point that arises for consideration is,
"Whether the order of the Appellate Court below
warrants any interference of this Court under section
115 of CPC / Article 227 of the Constitution of
India?"
POINT:-
8. The contention of the revision petitioner is that the
Appellate Court below grossly erred in applying Article 134 of
the Limitation Act, 1963 instead of Article 127 for the
application filed by the respondent/J.Dr., under Order 21, Rule
90 of the CPC, which applies only to an application filed by an
auction purchaser seeking for delivery of possession of the
property purchased in the auction conducted by the Court. The
BVLNC, J CRP No.442 of 2013
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further contention of the revision petitioner is that to file the
application under Order 21, Rule 90 of the CPC the limitation is
60 days and it starts from the date of sale and in that view of
the matter the application was filed by the J.Dr., after 60 days
from the date of sale, is barred by limitation. The further
contention of the revision petitioner is that the material on
record clearly establish that the judgment debtor has
participated throughout the execution proceedings before the
executing court, but he never pleaded illegality, irregularity or
fraud in the sale of the property or he did not raise any
objection at that time stating that part of the property only
sufficient to satisfy the decree. On the other hand, his
contention was that the property does not belong to him, and
his mother, sister and brother filed application under Order 21,
Rule 58 of the CPC, and the same was dismissed by the Court
and appeal filed against the said order was also dismissed.
Subsequently, the J.Dr., filed another application under Order
21, Rule 89 of the CPC and it was also dismissed by the
Executing Court and the J.Dr., also filed a revision petition
before the High Court and it was also dismissed.
9. The learned counsel for the revision petitioner
submitted that as per the judgment of this Court in Jagati
BVLNC, J CRP No.442 of 2013
Page 8 of 19 Dt.28.11.2022
Thimmaraju v. Uppuluri Brahmanna reported in 1998 (3) ALD
404, Article 127 of the Limitation Act, 1963 applies to an
application filed Order 21 Rule 90 CPC, to set aside the sale on
the ground of certain irregularities in the conduct of sale, and if
the application filed beyond 60 days from the date of sale, it is
barred by limitation. It is further submitted that a Division
Bench of this Court in Guttikonda Venkataramaiah vs.
Godavarthy Venkateswarlu and another reported in 2015 (1)
ALD (SC) 1 held that when J.Dr., has not raised any objection
about the conduct of sale for the whole property, when he has
an opportunity to raise objection, he could not file an
application under Order 21, Rule 90 of the CPC later, in view of
the bar under sub-clause (3) of Order 21, Rule 90 of the CPC.
Further the Hon'ble Apex Court in Aarifaben
Yunusbhai Patel and others vs. Mukul Thakorebhai Amin
and others reported in (2020) 5 Supreme Court Cases 449
held that the limitation for filing an application to set aside a
sale in execution of decree is 60 days in terms of Article 127 of
the Limitation Act, and Section 5 of the Limitation Act, which
deals with extension of time for condonation of delay is not
applicable to proceedings under Or. 21, R.90 CPC and therefore,
the delay, if any in filing of proceedings under Or. 21, R. 90
BVLNC, J CRP No.442 of 2013
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CPC, cannot be condoned under S. 5 of the Limitation Act.
Further Apex Court also observed that the limitation issue if
raised, the Court first must decide the objection raised by the
decree holder first before going into the other issues.
10. Hence, the revision petitioner is harping upon two
grounds, one is limitation under Article 127 of Limitation Act
and the other is prohibition under Order 21, Rule 90 (3) of CPC.
GROUND No.1:-
11. The admitted facts are that the Executing Court
conducted the sale on 15.11.2005, the application under Order
21, Rule 90 of the CPC was filed 21.12.2009 and the sale was
confirmed on 31.12.2009. The Executing Court dismissed the
above application filed by the J.Dr., on 23.07.2010 on the
ground that the J.Dr., has failed to prove the irregularities
happened in the sale, and further that the J.Dr., has
participated in each and every proceeding in the execution
proceedings from the date of attachment till the date of sale and
no where he raised such a plea now raised, including the
application under Order 21, Rule 89 of the CPC, and therefore,
the J.Dr., has no right to ask for setting aside of sale.
BVLNC, J CRP No.442 of 2013
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12. The learned Senior Civil Judge in the order held
that the limitation starts from the date of confirmation of sale as
per Article 134 of the Limitation Act by relying upon the
decision of the Hon'ble Apex Court in Balakrishnan v.
Malaiyandi Konar reported in (2006) 3 SCC 49.
13. The Hon'ble Apex Court in similar circumstances in
para 7 of the judgment in Aarifaben Yunusbhai Patel v. Mukul
Thakorebhai Amin (cited supra) held as under: -
"7. We may note that it has been strenuously urged by Mr. Nikhil
Goel, learned counsel for the Respondents that the sale is
fraudulent without following the procedure prescribed by law, but
we are clearly of the view that first we have to decide whether the
objections filed by the respondents were filed within time or not. In
case the petition is filed beyond the period of limitation it is not
necessary for the Court to go into other issues."
14. The Hon'ble Apex Court in para No.9 regarding the
limitation for filing application to set aside the sale in executing
of decree held as under: -
"The limitation for filing an application to set aside a sale in
execution of decree is 60 days in terms of Article 127 of Third
Division, Part1 of the Limitation Act, 1963 (for short the Act).
Reference may also be made to Section 5 of the Act which reads as
follows:
"5. Extension of prescribed period in certain cases. -- Any
appeal or any application, other than an application under any of
the provisions of Order XXI of the Code of Civil Procedure, 1908 (5
of 1908), may be admitted after the prescribed period, if the
appellant or the applicant satisfies the court that he had sufficient
cause for not preferring the appeal or making the application within
such period.
BVLNC, J CRP No.442 of 2013
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Explanation. --The fact that the appellant or the applicant was
misled by any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be sufficient
cause within the meaning of this section."
A bare reading of this provision clearly shows that Section 5 of the
Act which deals with extension of time or condonation of delay is
not applicable to proceedings under Order XXI Rule 90 of the CPC.
Therefore, the delay, if any, cannot be condoned under Section 5 of
the Act."
15. In the light of above principle laid down by the
Hon'ble Apex Court, it is necessary to refer Article 127 of the
Limitation Act, which reads as under: -
-----------------------------------------------------------------
Description of Period of Time from
Application Limitation which period
Begins to run
-----------------------------------------------------------------
To set aside in exe- Sixty Days The date of
cution of a decree, sale
including any such
application by a
judgment-debtor.
-----------------------------------------------------------------
16. This Court in Jagati Thimmaraju v. Uppuluri
Brahmanna (cited supra) held as under: -
"Apart from this, he also states that the petitioner has preferred this
application at the fag end of three years i.e., 23-6-1990, whereas the
sale of the property was effected on 24-6-1987. To file an application
raising objections to sale of the property, Article 127 of the Limitation
Act is applicable."
17. In the light of Article 127 of the Limitation Act,
1963, it is very clear that the judgment debtor has to raise any
BVLNC, J CRP No.442 of 2013
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objection with regard to the irregularities or fraud in conducting
sale within 60 days from the date of sale.
18. Article 134 deals with limitation regarding the
application filed by a purchaser of immovable property at a sale
in execution of decree for delivery of possession. It has nothing
to do with an application filed by a judgment debtor to set aside
a sale in execution of a decree on the ground of irregularity or
fraud.
19. In the light of the above legal position, the finding of
the Appellate Court below basing on Article 134 of the
Limitation Act, that to file an application under Order 21, Rule
90 of CPC limitation is one year from the date of confirmation of
sale, is erroneous and contrary to law of Limitation.
The judgment of the Hon'ble Apex Court relied on
by the Appellate Court below (Balakrishnan's case cited supra)
has no application to the facts of the case on hand, since the
application in the case on hand is filed by the judgment-debtor
under Order 21, Rule 90 of CPC and not by the purchaser for
delivery of possession.
BVLNC, J CRP No.442 of 2013
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20. In that view of the matter, the finding of the
Appellate Court below is erroneous, and liable to be set aside on
that ground alone.
GROUND No.2: -
21. When coming to the second ground raised by the
revision petitioner/D.Hr., the material on record, including the
order of the Executing Court makes it clear that the
respondent/judgment-debtor has participated at every stage of
the execution proceedings. He did not file any application soon
after the sale, and it is further established that his contention
earlier was that the property does not belong to him and
accordingly, his mother, sister and brother filed E.A.132 of 2004
and it was dismissed by the Executing Court on 16.08.2005.
Later, an appeal in A.S.No.33 of 2005 was challenging the same
was filed, and it was also dismissed on 02.06.2008. Thereafter
the judgment debtor filed an application under Order 21, Rule
89 of CPC in E.A.22 of 2006 after expiry of limitation, and it was
also dismissed on merits. The respondent/J.Dr., filed a revision
before this Court in CRP No.3933 of 2009 and it was also
dismissed by this Court. Later, sale was confirmed on
31.12.2009. Then the judgment debtor filed the present
application under Order 21, Rule 90 of CPC.
BVLNC, J CRP No.442 of 2013
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22. As per sub-clause (3) of Rule 90 of Order 21 of CPC
no application to set aside sale under this rule shall be
entertained upon any ground which the applicant could not
have taken on or before the date on which the proclamation of
sale was drawn up.
23. In the case on hand, as already discussed supra,
the material on record establishes that the respondent/J.Dr.,
has participated at every stage of the proceedings. He received
sale notice and received notice for settlement of terms under
Order 21, Rule 66 of CPC, and on the date of auction also he did
not raise any objection that sale of part of the property is only
sufficient to satisfy the decree.
Therefore, on this ground also the application filed
by him under Order 21, Rule 90 of CPC cannot be entertained.
The Appellate Court below set aside the order of the Executing
Court on the ground that it is a statutory duty of the Court
under Order 21, Rule 64 of the CPC that only such portion
thereof as may seem necessary to satisfy the decree shall be
sold. It appears that the appellate Court below was under an
impression that sale of the whole property against Order 21,
Rule 64 CPC is a nullity.
BVLNC, J CRP No.442 of 2013
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The Hon'ble Apex Court in Guttikonda
Venkataramaiah Vs. Godvarthy Venkateswarlu and another
(cited supra) in similar circumstances held as under: -
"18. In our opinion, respondent no.1 ought to have raised his objection at the stage
when the property in question was to be sold by an auction. He did not do so.
Subsequently, after the property was sold at the auction, he approached the High
Court, though a proper remedy for him was to file an application under Rule 90 of
Order XXI of the CPC. When the High Court had directed him to file appropriate
proceedings before an appropriate forum, he did so, but there also he was so
careless that the proceedings had been concluded against him on account of defaults
committed by him.
19. The aforestated circumstances very well show that the intention of the principal
debtor is to avoid making payment to the decree holder. If the judgment delivered by
the High Court is upheld, the entire proceedings with regard to execution will
commence de novo and one does not know as to when the proceedings would be
concluded and the decree holder would get the decretal amount. By this time, the
decretal amount, which was Rs.3,55,732/- somewhere in 2006, must have increased
substantially and it would not be just and proper to keep the decree holder waiting
still more."
24. This Court in Jagati Thimmaraju v. Uppuluri
Brahmanna (cited supra) held as under: -
"13. Next, Mr. N.V. Suryanarayana Murthy, learned Counsel for the
respondent relies on another three Judge-Bench Judgment of Apex
Court in Dhirendra Nath v. Sudhir Chandra, wherein their Lordships
have considered the provisions of Order 21, Rule 90 C.P.C. and also
the Bengal Money Lenders Act (10 of 1940) Section 35, where it was
contended that whether Section 35 of the Act is mandatory or directory
the sale held in violation of the said provision is only illegal but not a
nullity and therefore, it can be set aside only in the manner and the
reasons prescribed in Order 21, Rule 90 of the Code of Civil Procedure
BVLNC, J CRP No.442 of 2013
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and further when the respondents did not attend at the drawing up of
the proclamation of sale, the sale cannot be set aside at their instance.
Their Lordships in para 5 of the judgment, have considered the effect of
Section 35 of Bengal Money Lenders Act (10 of 1940), Order 21 Rule 64
and Order 21 Rule 66. But, ultimately their Lordships agreed with the
views expressed by the Division Bench of the Calcutta High Court
consisting of Akram and Chakravarti, JJ., in Mahindra Chandra v.
Jagadish Chandra, 1950 Cal. WN 266."
25. Further, in Dhirendra Nath v. Sudhir Chandra
reported in AIR 1964 SC 1300 a three Judges Bench of the
Hon'ble Apex Court held that the sale in violation of the said
provision is only illegal but not a nullity and therefore, it can be
set aside only in the manner and the reasons prescribed in
Order 21, Rule 90 of CPC and further when the respondents did
not attend at the drawing up of the proclamation of sale, the
sale cannot be set aside at their instance.
26. Therefore, it is very clear that the sale held in
violation of the provision is only illegal, but not a nullity and it
can be set aside only in the manner and for the reasons
prescribed under Order 21, Rule 90 of CPC.
In the case on hand, as already discussed above,
the respondent/J.Dr., did not raise any objection at the time of
drawing up of proclamation of sale and on the date of sale
regarding the sale of whole property against Order 21, Rule 64
BVLNC, J CRP No.442 of 2013
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of CPC. The respondent/J.Dr., after exhausting all the remedies
through his mother, sister and brother, and by himself on
different grounds from time to time, filed the present application
on 21.12.2009, which is clearly barred by limitation in view of
Article 127 of the Limitation Act.
In that view of the matter, the finding of the
Appellate Court below that it is a statutory duty of the Court to
set aside the sale under the impression that the sale is a nullity,
is erroneous as any sale shall be set aside only for the reasons
prescribed under Order 21, Rule 90 of CPC.
27. In the light of above discussion, the order of the
Appellate Court below requires interference under section 115 of
CPC and Article 227 of the Constitution of India, and therefore,
it is to be set aside.
28. In the result, the revision petition is allowed. The
Order dt.05.11.2012 in C.M.A. No.5 of 2010 on the file of Senior
Civil Judge Court, Repalle reversing the order of the Executing
Court in E.A.No.34 of 2010 in E.P.No.5 of 2003 in O.S.No.286 of
2000, dt.23.07.2010, is set aside.
There shall be no order as to costs.
BVLNC, J CRP No.442 of 2013
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As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_________________________________
JUSTICE BVLN CHAKRAVARTHI
28th November 2022
dvsn
BVLNC, J CRP No.442 of 2013
Page 19 of 19 Dt.28.11.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CIVIL REVISION PETITION NO.442 OF 2013
Date:28.11.2022
DVSN
