HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.1939 OF 2010 Dt.30.7.2010 Between: P.Jahadali Basha ..Petitioner And Ugranam Venugopal ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.1939 OF 2010 ORDER: This civil revision petition is directed against the docket order dated 25.2.2010 in O.E.P.No.1 of 2008 in O.S.No.7 of 2006 on the file of the Senior Civil Judge, Punganur. Petitioner herein is the judgment debtor and the respondent herein is the decree holder. The suit in O.S.No.7 of 2006 on the file of the Senior Civil Judge, Punganur was filed by the respondent for recovery of money based on simple mortgage of the property. The court below initially passed preliminary decree on 3.8.2006 and thereafter passed final decree on 11.7.2007. Subsequently, the respondent filed O.E.P.No.1 of 2008 for recovery of E.P. amount of Rs.3,05,812/- by sale of the mortgaged property of the judgment debtor. It is the case of the petitioner that he has filed a petition in E.A.No.104 of 2009 to set aside the sale conducted on 6.8.2009 on the ground of material irregularity. It is stated that the decree holder filed E.A.No.82 of 2009 under Order 21 Rule 72(a) C.P.C., seeking permission to participate in the auction and the same was allowed. Accordingly, permission was granted to the decree holder to participate in the bid and the decree holder stood as highest bidder in the said bid. But, the decree holder has not deposited 25% of the remaining balance of auction amount immediately after the sale was held. The decree holder also not filed any application under Order 21 Rule 84(2) C.P.C seeking dispensing with the requirements of Rule 84(1) C.P.C. The decree holder has not complied with the mandatory provision of depositing of 25% of the amount of remaining balance on the date of conducing auction. Further, the decree holder also has not paid poundage on the very same day, which is mandatory on the part of the decree holder. The decree holder deposited the poundage of Rs.9,945/- on 10.8.2009 and also filed the lodgment of deposit of balance amount of Rs.24,188/- on 11.8.2009. As per Rule 278 of Civil Rules of Practice, if the decree holder purchased the property with the leave of the Court and he is allowed to set off purchase money against any sum due to him, he shall pay the amount chargeable for poundage to the person appointed to sell the property as soon as he declared to be the purchaser. But, here the poundage amount is not deposited on 6.8.2009 and the same was deposited on 10.8.2009 after lapse of four days, likewise the decree holder also not obtained any permission dispensing with the Rule contemplated under Order 21 Rule 84(a) C.P.C. Therefore, the sale held on 6.8.2009 is liable to be set aside and the property has to be resold in the court auction. The said application filed Order 21 Rules 84(1) and 86 read with Section 151 C.P.C has been dismissed by order, dated 25.2.2010, that in view of the order in E.P., the petition is rejected in view of the previous objections. Aggrieved by the same, this revision petition is filed. It is the case of the respondent decree holder that the said E.P. was posted to 6.8.2009 for auction of the E.P. schedule properties and the value of the E.P. schedule properties is Rs.2,75,000/- and the value of the decree holder is Rs.2,50,000/- alone. It is not in dispute that the preliminary decree was passed on 3.8.2006 and final decree was passed on 11.7.2007 for an amount of Rs.2,71,981/-. The decree holder filed O.E.P.No.1 of 2008 for recovery of E.P. amount of Rs.3,05,812/- by sale of mortgaged property of the judgment debtor under Order 21 Rules 64 and 66 C.P.C. The decree holder also filed E.A.No.82 of 2009 in O.E.P.No.1 of 2008 seeking permission of the executing court under Order 21 Rule 72(a) C.P.C to participate in auction and became highest bidder for Rs.3,30,000/- in the auction held on 6.8.2009 and purchased the suit mortgaged property and also paid poundage of Rs.9,900/- and the executing court set off the E.P. amount of Rs.3,05,812/- and he deposited the balance amount of Rs.24,188/- into court on 11.8.2009 and also paid Rs.16,600/- for sale certificate fee on 18.8.2009 and thus he has complied with all formalities. In fact, the petitioner filed earlier E.A.No.104 of 2009 under Order 21 Rule 90 C.P.C to set aside the sale held on 6.8.2009 on the ground of material irregularity and fraud and the said E.A. was dismissed on merits by order dated 9.11.2009. The executing court held that there was no any irregularity in the sale conducted on 6.8.2009 and there was no any fraud played by the decree holder in the auction and there was no any collusion between the parties and the bidders and in fact the decree holder was permitted to participate in the auction by order dated 6.8.2009 in E.A.No.82 of 2009 and he became highest bidder for Rs.3,30,000/-and paid poundage of Rs.9,900/- and the executing court set off the E.P. amount of Rs.3,05,812/- and deposited the balance amount of Rs.24,188/- into court on 11.8.2009 and also paid Rs.16,600/- for sale certificate fee on 18.8.2009. At this juncture, the said E.A.No.104 of 2009 was filed and on the date when the decree holder deposited the sale certificate fee for Rs.16,600/-. The petitioner did not raise any objection about the conduct of the sale and about the reserve price. The court below relying on the various decisions of the Apex Court and this Court rejected all the contentions of the petitioner holding that the decree holder participated in the auction after obtaining permission and no injury is caused to the judgment debtor and in fact he has not raised any objection at any point of time except alleging that the court below has not followed the mandatory provisions under Order 21 Rule 72(a) C.P.C., but he has not stated as to how his interest was affected by the sale. This Court in Gadde Buchaiah v. Dasari Kotaiah[1] on similar contention that when the decree holder himself was the auction purchaser and did not obtain permission under Order 21, Rule 84(2) C.P.C for dispensing with the requirements of Order 21, Rule 84(1) and hence the sale is void, held that no ex parte permission is necessary in order to entitle the decree holder to set off the amount due under the decree against the purchase money and reading of Order 21, Rule 72(2) and Rule 84(2) C.P.C. together it follows that permission to set off or to dispense with the requirements of 25% deposit may be inferred from the circumstances of the case. Unless there are strong indications to the contrary it is reasonable to assume that the court, which had granted permission to the decree holder to bid, would also grant permission to set off the decree amount against the purchase money and to dispense with the requirement of deposit of 25% of the purchase money. In the presence case, permission to set off was expressly given and the court allowed the decree holder to deposit 25% of the difference between the sale amount and the warrant amount. From this the inference is irresistible that the court dispensed with the requirement of Order 21, Rule 84(1) C.P.C., that the decree holder should deposit 25% of the purchase money. Therefore, I am of the view that the court below was right in dismissing the said application. I do not see any merit in the civil revision petition and the same is accordingly dismissed. ________________ V.ESWARAIAH, J. 30.7.2010 kpr [1] AIR 1971 AP 392 (V.58 C 81)