Andhra Pradesh High Court - Amravati

Shaik Shahida vs Shaik Moulali on 31 January, 2023

    HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

        CIVIL REVISION PETITION No.852 of 2022

Between:

Shaik Shahida, W/o late Galib Bude, aged
about     53    years,     D.No.42-4-35A,
Muthayalampadu,    Vijayawada,    Krishna
District.
                                                  ... Petitioner.
           Versus

Shaik Moulali, S/o Mastan, aged about 53
years, residing at near Durga Super Market,
Muthayalampadu,       Vijayawada,   Krishna
District and another.
                                         ... Respondents.

Counsel for the petitioner      : Sri K.Rajanna
Counsel for 1st respondent      : Sri Sunkara Rajendra Prasad
Counsel for 2nd respondent      : Ms.Vangala Sailaja

                             ORDER

Judgment debtor filed the above revision against the

order dated 01.04.2022 in C.M.A.No.5 of 2018 on the file of V

Additional District Judge, Vijayawada confirming the order

dated 23.03.2018 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.

SRSJ CRP No.852 of 2022

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 dated 14.06.2012. Execution petition

was adjourned from time to time for filing counter. On

10.09.2012 the executing Court adjourned the matter to

26.09.2012 for filing counter on payment costs of Rs.100/-.

On 26.09.2012, 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 03.12.2012 for settlement of

terms. On 22.01.2013 counsel for decree holder filed a memo

SRSJ CRP No.852 of 2022

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

22.01.2013. Bid was knocked down in favour of highest

bidder D.Gangadhar for Rs.17,50,000/-. Auction purchaser

paid 1/4th of bid amount i.e. Rs.4,37,500/- including

poundage of Rs.52,545/-.

3. On 08.03.2013, 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 22.04.2013, 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 24.08.2013. A review petition was filed

and the same is pending consideration. The executing Court

dismissed the E.A.No.44 of 2013 on 23.03.2018 and the sale

was confirmed on 29.03.2018. Aggrieved by the same

C.M.A.No.5 of 2018 was filed and the lower appellate Court

dismissed the same by order dated 01.04.2022. Assailing the

said order, the present revision is filed.

SRSJ CRP No.852 of 2022

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

SRSJ CRP No.852 of 2022

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 20.03.2009 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

04.01.2013 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.

SRSJ CRP No.852 of 2022

10. The executing Court on a consideration of material

available on record, dismissed the application by order dated

23.03.2018.

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/-. In Proclamation

drawn by the Amin, the value is shown as Rs.10,00,000/-.

Sale was knocked down for Rs.17,50,000/-. 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

dated 01.04.2022.

SRSJ CRP No.852 of 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.1, 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.

2015 (4) ALD 693

SRSJ CRP No.852 of 2022

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 & Co. Vs. Ludhiana

Improvement Trust & Ors.2, 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