IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5856 of 2004 Between: T. Purushotam. ... PETITIONER AND Minor Surya rep. by his grandfather and another. ...RESPONDENTS Counsel for the Petitioner : Mr. P. Venkat Rama Sarma Counsel for the Respondents : Mr. K.S. Gopala Krishnan The Court made the following: ORDER: The judgment debtor in O.E.P.No.149 of 2001 in O.S.No.41 of 1996 on the file of the Additional Senior Civil Judge, Tirupati is aggrieved by the order of the executing Court in dismissing his application E.A.No.652 of 2004 dated 11.10.2004 filed under Order XXI Rule 90 of Civil Procedure Code, 1908 to set aside the sale. 2. The first respondent/decree holder obtained a decree against the petitioner herein and the decretal amount as on the date of sale was Rs.98,391/- and five items of the property, as under, were put to sale in execution of the said decree. S.No. Extent: 1. 540/22 Ac.1-19 cents 2. 540/30 Ac.0-85 cents --------------- Ac.2.04 cents --------------- Rs.75,00/- per acre = Rs.1,53,000/- 3. 552/2C2 Ac.0-31 cents 4. 552/2D2 Ac.0.21 cents 5. 553/1C Ac.0.23 cents --------------- Ac.0.75 cents --------------- Rs.51,000/- per acre = Rs.38,250/- Half share in the well 570/C1 5. II P. motor a) Well Rs.10,000/- b) 5 H.P. Motor Rs. 5,000/- c) 3 H.P. Motor Rs. 3,000/- ------------- Total: Rs.2,09,250/- 3. As per the valuation given by the decree holder the total value of the items is Rs.3,00,000/- whereas the Court below has fixed the upset price for Rs.2,00,000/-. The valuation by the Amin is Rs.1,35,200/-. The sale proclamation was issued in Prajashakti Newspaper proposing to sell the above items on 23.04.2004. However, admittedly the sale was not held on that day and adjourned and it was held on 29.04.2004. The second respondent herein, who is the auction purchaser, gave the highest bid for Rs.2,05,000/- among the seven bidders, who participated in the said auction and the said highest bid was accepted by the Court below. The said higher bidder has deposited the amount of the entire sale consideration. At this stage, the petitioner filed the present application. It is also evident from the record that the second respondent – auction purchaser is the grandfather of the first respondent – decree holder, who is a minor and the second respondent participated in the auction after obtaining the permission from the executing Court. 4. The petitioner had challenged the said sale on the ground that the date originally mentioned in the proclamation was shifted to 29.04.2004 and there was no notice of adjournment of sale. He also submitted that for recovery of an amount of Rs.98,391/- any one or more items could have been put to sale instead of all the items put together and thereby the petitioner is prejudiced. It is also contended that the valuation by the Amin is too low and is much lower than the decree holder’s valuation whereas the petitioner valued the property at Rs.4,00,000/-. Thus, the sale of the property for Rs.2,05,000/- is almost at 50% of the value of the property. It was also alleged that no upset price fixed and no wide publicity given for the said sale. 5. Learned counsel for the petitioner placed reliance upon the decisions of the Supreme Court in AMBATI NARASAYYA v. M. SUBBA RAO[1] and BALAKRISHNAN v. MALAIYANDI KONAR[2] for the proposition that only to the extent of necessity to satisfy the decree, such items alone could be put to sale instead of properties together. He also relied upon another decision of the Supreme Court in VAREED JACOB V. SOSAMMA GEEVARGHESE[3] to contend that all interim orders pending the proceedings revive when the suit proceedings are restored. 6. The aforesaid contention was raised in view of the fact that this Court entertained the CRP and granted stay. The CRP itself was dismissed and before it could be restored, further proceedings in the EP took place, such as, issuance of sale certificate, delivery of possession to the purchaser etc. Based on the above decision, the learned counsel states that the petitioner is entitled to be restituted to possession when this Court had granted stay of further proceedings, since the CRP was restored. 7. Learned counsel for the respondent contends that this revision is not maintainable and an appeal lies under Order 43 Rule 1(j) CPC and places reliance upon a decision of this Court in VUMMETHA SOMAMMA v. THAMEERU BALANGAMMA[4] as well a decision of the Karnataka High Court in TALARI THIPPESWAMY v. K. DODDAPPA[5]. He also submitted that there are no irregularities whatsoever as due publicity was given and as many as seven bidders participated in the auction, which itself establishes that there was due publicity. Learned counsel submits that in view of the fact that the auction purchaser has deposited amounts long back and has been issued sale certificate and also has been delivered possession of the property, it would not be just and proper to interfere with the impugned order. 8. The question that falls for consideration is as to whether the order of the Court below impugned in this revision is justified in refusing to set aside the sale on the grounds as urged by the learned counsel for the petitioner. 9. The principle under Order 21 Rule 64 CPC was examined by the Supreme Court in TAKKASEELA PEDDA SUBBA REDDI V. PUJARI PADMAVATHAMMA[6]. The relevant portion of Para 3 is extracted as under: “3. …This, in our opinion, is the logical corollary which flows from O.21 R. 64 of the Code which may be extracted thus: “Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.” The ratio of the above decision is subsequently followed by the Supreme Court in AMBATI NARASAYYA’s case (1 supra) as well as in BALAKRISHNAN’s case (2 supra). Applying the said ratio to the facts of the present case, it is evident that there are 5 distinct items of the property, which are put to sale and keeping in view the valuation of the decree holder, it was not necessary to sell all the items in order to realize the decretal amount. In fact, the Supreme Court was of the view that such practice of putting all the properties to sale and not confining the sale to the extent necessary to satisfy the decree was deprecated. The decision of the Supreme Court in AMBATI NARASAYYA’s case (1 supra) was cited before the Court below on behalf of the petitioner but in para 9 of the impugned order the executing Court has failed to apply the said decision by taking spacious plea that on facts the decision is different from the case on hand. It is clear and evident that five independent items of the property which are put to sale are covered by Ex.A1 valuation certificate and based on that the sale could have been confined to such other items as was necessary to satisfy the decree. Further, all the items are sold in one lot instead of selling each item in separate lots. The prejudice to the petitioner is, therefore, evident from the aforesaid irregularity by itself and I am of the view that it is a clear case of excess sale beyond the jurisdiction of the executing Court and contrary to the provision of Order 21 Rule 64 CPC as well as the ratio in various decisions of the Supreme Court referred to above. 10. So far as the ground of wide publicity is concerned, publication of sale proclamation in ‘Prajashakti’ newspaper, merely because the said paper is recognized by the Court and without looking at its circulation in the village and surrounding areas, is equally serious and irregular. The purpose of the publication of sale is to give wide publicity and invite competitive offers so as to ensure that the property of the judgment debtor is sold at a competitive price. The manner in which the sale is conducted in the present case does not commend itself of the compliance regarding wide publicity. Apart from the fact that the sale was adjourned from the original scheduled date of 23.04.2004 to 29.04.2004, there is no material to show that there was due publicity with regard to the adjourned date of auction. The Court below, has not kept in mind the aforesaid two principal irregularities in considering the petitioner’s application and I am of the view that the impugned order is liable to be set aside and the sale is liable to be declared as having suffered from serious and material irregularities warranting an order to set aside sale under Order 21 Rule 90 CPC. 11. So far as the objection of the learned counsel for the respondent regarding maintainability of CRP is concerned, the same is clearly misconceived as an appeal is provided under Order 43 Rule 1(j) CPC against an order under Rule 72 or Rule 92 of Order 21 CPC. In the present case no order of confirmation as contemplated under Rule 72 of Order 21 CPC is passed by the executing Court and the impugned order merely rejects the petitioner’s application under Order 21 Rule 90 CPC. The impugned order, therefore, cannot be said to be referable to Order 21 Rule 72 or Rule 92 CPC and as such, I do not find any substance in the said contention. So far as the decision of this court relied upon the by learned counsel for the respondent VUMMETHA SOMAMMA’s case (4 supra) is concerned, in that case there was no application either under Rule 89 or Rule 90 of Order 21 CPC and straightaway revision was preferred. The said decision, therefore, is not applicable to the present case. So far the decision of Karnataka High Court in TALARI THIPPESWAMY’s case (5 supra) is concerned, that was a case where the executing Court had passed an order under Rule 72 confirming the sale and it is also not applicable to the present case. This revision petition is, therefore, clearly maintainable. 12. While admitting this revision, this Court on 30.12.2004 had granted interim stay on condition of petitioner depositing the entire EP schedule amount within a period of three weeks and in compliance with the said order the petitioner had deposited the entire EP schedule amount. In view of the same, therefore, the claim of the decree holder would easily get satisfied from out of the said deposited amount and there is no warrant to force the sale of property on the judgment debtor. 13. So far as the auction purchaser is concerned, it is, no doubt, true that he has deposited the amounts in pursuance of the acceptance of his highest bid; however, his prejudice can be easily redressed by granting interest on the said deposited amount to be borne by the petitioner/judgment debtor and also permitting the auction purchaser to withdraw the amounts deposited by him. When the sale is set aside under Order 21 Rule 90 CPC the auction purchaser would be entitled to the amount deposited by him as per the decision of the Supreme Court in HINDI PRACHARAK PRAKASHAN v. M/s. G.K. BROTHERS[7] and would also be entitled to interest on the said deposited amount at 7.5% per annum from the date of deposit till withdrawal and the said interest shall be paid by the petitioner/judgment debtor. The auction purchaser is, therefore, at liberty to approach the executing Court seeking refund of the deposited amount and the executing Court shall also quantify the interest payable by the petitioner/judgment debtor in O.E.P.No.149 of 2001 and shall recover the said amount from the petitioner and to be paid over to the auction purchaser. The first respondent/decree holder shall be entitled to withdraw the decretal amount deposited by the judgment debtor, if not already withdrawn. 13. To the extent of the contention of the respondent that the sale certificate is issued and possession is delivered, the same is of no consequence in view of the restoration of the CRP, which automatically revives the interim orders unless expressly or impliedly the said interim orders are not continued, as held by the Supreme Court in VAREED JACOB’s case (3 supra). The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 19, 2010 DSK [1] AIR 1990 SC 119 [2] AIR 2006 SC 1458 [3] AIR 2004 SC 3992 [4] AIR 2003 AP 45 [5] AIR 1996 KARNATAKA 128 [6] AIR 1977 SC 1789 [7] AIR 1990 SC 2221