Andhra Pradesh High Court - Amravati

K.Sarala vs Sk.Habeeba on 2 February, 2024

Author: Ninala Jayasurya

Bench: Ninala Jayasurya

                                  1




IN THE HIGH COURT OF ANDHRA PRADESH::AMARAVATI
     THE HON'BLE SRI JUSTICE NINALA JAYASURYA
        CIVIL REVISION PETITION No.1457 of 2023
Between:-

Smt. K. Sarala
                                                     ....Petitioner.
                              And

Smt. Sk.Habeeba
                                               ....     Respondents

Counsel for the Petitioner    :       M/s. G. Neelothpal

Counsel for the Respondent : Mr.M.Ravindra Babu

ORDER:

This Civil Revision Petition is filed against the order

dated 27.03.2023 in E.A.No.214 of 2022 in E.P.No.341 of

2017 in O.S.No.166 of 2014, on the file of the Court of the 6th

Additional District Judge, Nellore.

2) The petitioner herein is the Judgment Debtor. The

respondent herein filed O.S.No.166 of 2014 for an amount of

Rs.10,00,000/- and obtained a preliminary decree dated

30.06.2016 for a sum of Rs.14,95,997/- with costs and future

interest and in default to apply for Final Decree for sale of

mortgaged property. Subsequently, Final decree was passed

on 31.10.2017 for sale of mortgaged property, which was

conducted on 16.12.2022. Seeking to set aside the sale, the

petitioner/JDr., filed the E.A.No.214 of 2022 and the same

was dismissed by an order dated 27.03.2023, against which

the present Civil Revision Petition has been preferred.

3) Learned counsel for the petitioner, inter alia,

contends that the order of the learned District Judge in

dismissing the application to set aside the sale is not tenable.

He submits that the learned District Judge failed to

appreciate the contention of the petitioner that the sale

notification was ordered to be published in the District

Edition of Eenadu daily newspaper, but whereas it was

published in Kovur Constituency edition only and therefore

the sale is liable to be set aside. He submits that if the

publication was done in the District Edition, more bidders

would have participated in the auction of the property and it

would have fetched more value. While seeking to set aside

the order under challenge, he also submits that to prove the

bona fides, the petitioner is ready to deposit the entire sale

amount of Rs.20,90,000/-.

4) On the other hand, learned counsel for the

respondent made submissions by placing a copy of the order

dated 31.10.2023 in C.M.A.No.244 of 2023 and contends that

in the light of the said order, apart from the well considered

order of the Court below no interference is called for by this

Court.

5) Considered the submissions made and perused the

material on record. On appreciation of the submissions

made, the grievance of the petitioner is that the application

for sale notice was not made in Nellore District Edition of

Eenadu, but was published in Eenadu edition circulated in

Kovur constituency and thereby mortgaged property secured

less price. In the affidavit filed in support of the E.A., except

stating that the publication made in Kovur constituency is

defective and monetary loss was caused to the petitioner,

nothing is divulged that the mortgaged property was sold for

lesser value. Except marking Ex.P.1, i.e., Eenadu Daily

Newspaper dated 25.11.2022, the petitioner has not filed any

material/valuation report in respect of the mortgaged

property. Learned District Judge after considering the

matter, while observing that pursuant to the auction notice

five bidders, including the Decree holder with the submission

of the Court, participated in the auction, recorded a finding

that no evidence was adduced by the petitioner to

substantiate that the schedule property was sold at a price

below the market rate and prejudice is caused to her because

of non-publication of auction notice in Eenadu, Nellore

District Edition. Learned Judge has also observed that the

petitioner did not aver or prove that she sustained substantial

injury by reason of such publication. The above said

conclusion of the learned District Judge are well founded.

6) Further, as seen from the orders in C.M.A.No.244 of

2023 on which reliance is placed by the learned counsel for

the respondent, it is discernable that similar contentions

raised with reference to the publication of auction notice were

rejected. The said CMA was filed against the order dated

27.03.2023, passed in E.A.No.215 of 2022 in E.P.No.341 of

2017 in O.S.No.166 of 2014 contending that the appellant /

claim petitioner is having prior mortgage over the property,

which was brought to sale in the above referred suit, the said

E.A. was filed seeking to set aside the sale dated 16.12.2022.

It is the case of the claim petitioner that he filed a suit in

O.S.No.38 of 2018 for recovery of an amount of

Rs.10,00,000/- against the revision petitioner herein on the

strength of a promissory note, the property which is the

subject matter of the suit in O.S.No.166 of 2014 was offered

as security and title deeds in respect of the same were handed

over to him. The said suit O.S.No.38 of 2018 was decreed on

03.07.2019 and by virtue of the said decree, he has got first

charge over the property and is entitled to receive the sale

proceeds in O.S.No.166 of 2014 in a rateable distribution and

that the conduct of sale itself is an irregularity. The said

E.A.No.215 of 2022 was dismissed, against which the above

referred CMA was preferred before this Court.

7) It was, inter alia, argued on behalf of the appellant

that the publication of sale of the mortgaged property was

made in Kovuru Edition only instead of the District Edition,

that the publication should have been made in the District

Edition giving opportunity for more bidders to participate in

the auction. It was also contended that as the publication

was not made in the District edition, the property could not

have been sold. The learned Judge after considering the

matter, dismissed the CMA by an order dated 31.10.2023 the

relevant portion of which reads as follows:

"14. This Court further observed that, one B.V.V.Subba Rao was the Advocate for the plaintiff in O.S.No.38 of 2018 which was filed by the appellant herein and one P.Sreenivasa Rao, Advocate appeared for the defendant in O.S.No.38 of 2018. The said defendant is the J.Dr in the suit. The Court below suo motu marked Ex.C1., which is vakalat filed by the Advocates viz., Sri P. Sreenivasa Rao and Sri B.V.V.Subba Rao on behalf of the Judgment Debtor in the E.P. AS both the advocates belong to one office, it appears that the said suit was collusive in nature."

8) Learned Judge after considering the matter, with

reference to the publication of auction notice, concluded that

appellant has not adduced any evidence to show that

prejudice is caused to the appellant by virtue of the auction

for the property and there is no proof of prior mortgage

between the appellant and the Judgment Debtor and proof of

material irregularities or fraud for setting aside the sale. In

the light of the orders of the learned Judge rejecting the

application of the claim petitioner to set aside the sale,

rejecting the similar contentions raised in the present Civil

Revision Petition, this Court is not inclined to accept the

submission of the learned counsel to set aside the order