IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1056 of 2006 Between: Maremalla Praja Vardhan. ... PETITIONER AND Pasumarthi Badari Narayana Rao and four others. ...RESPONDENTS Counsel for the Petitioner : Mr. A. Ramakrishna Counsel for the Respondents: Mr. Ambadipudi Satyanarayana The Court made the following: ORDER: The auction purchaser, who was arrayed as third respondent before the executing Court seeks to question the order of the executing Court in E.A.No.796 of 2003 dated 01.03.2004 as confirmed by the appellate Court in CMA.No.25 of 2004 dated 21.09.2005. By the aforesaid order the executing Court had set aside the Court sale dated 29.04.2002 in E.P.No.528 of 1999 in O.S.No.202 of 1997 by order dated 01.03.2004 of the learned I Additional Junior Civil Judge, Guntur. 2. For the sake of convenience, the parties are referred to as they are arrayed in E.A.No.796 of 2003. Brief facts, so far as relevant, are as follows. 3. The petitioners, who are the children of Venkata Hanumantha Rao, filed the said EA seeking to set aside the sale by contending that their deceased father appeared to have borrowed amount from the first respondent and later the deceased father of the petitioners committed suicide on 01.03.1997 due to pressures from his creditors. Since then, their family is scattered and they are living at different places and have not ventured even to visit Guntur on account of threat of creditors. The first respondent filed O.S.No.202 of 1997 and obtained a decree against the father of the petitioners. In the said suit, all the legal heirs were impleaded and though the petitioners never received the suit summons, they were served by substituted service by publications made in Guntur. The petitioners, therefore, were not aware of the filing of the suit and the decree obtained by the first respondent on 17.02.1999. The petitioners categorically stated that in spite of defects in service, still they are not questioning the decree and they are prepared to discharge the suit liability. However, the property of the petitioners was being put to sale in EP proceedings also without notice to the petitioners and they came to know that the third respondent participated in the auction on 29.04.2002 and has managed to get the property knocked down in his favour at a very very low price at Rs.4,25,000/-. Alleging that the sale is vitiated by fraud and material irregularities, the present application was filed seeking to set aside the sale. 4. Counter was filed by the first respondent/decree holder stating that the mother of the petitioners resisted the suit and the execution proceedings by raising objections, which were rejected. He submitted that the suit house was under attachment pending suit and as such, the first respondent was justified in bringing it to sale when the decree was not satisfied by the judgment debtors. 5. Petitioner/auction purchaser herein, who is third respondent in the said EA, filed a counter stating that the auction was held in the presence of the mother of the petitioners and he has already deposited entire sale consideration amount as early as in May 2002. He also claimed that the present application is barred by limitation and not maintainable. 6. The executing court by order dated 01.03.2004 considered that the decretal amount is only Rs.23,596/- and though the present application is moved by the petitioners after a delay of 1½ years, they have shown sufficient cause on the ground that neither summons in the suit were served nor the notices in the EP were served on the petitioners and that they were set ex parte in the suit as well as in the EP. The executing Court accepted the contention of the petitioners that after the death of their father, the family was scattered and they are not residing in Guntur and staying at different places. The executing Court was, therefore, satisfied that the petitioners have made out sufficient cause to set aside the auction sale. Another application being E.A.No.795 of 2003 was filed along with the present application E.A.No.796 of 2003 to set aside the ex parte decree and to set aside the sale, respectively, were separately considered by the executing Court and E.A.No.795 of 2003 was allowed by the executing Court already and on the self-same facts when the present application in E.A.No.796 of 2003 was filed, the same was also allowed. Questioning the said order in E.A.No.796 of 2003, the third respondent/auction purchaser field an appeal being CMA.No.26 of 2004 before the District Judge, Guntur, which was dismissed on 21.09.2005. Hence, this revision. 7. Mr. A. Ramakrishna, learned counsel for the petitioner contended that the very consideration of E.A.No.796 of 2003 is erroneous inasmuch as the power to condone the delay by applying Section 5 of the Limitation Act is not available with respect to the application filed under Order 21 of Civil Procedure Code. He has relied upon the decisions of the Supreme Court in MOHAN LAL v. SHRI HARI PRASAD YADAV[1] as well as in G.K.S.H. & T.E. & WORKERS UNION v. SRINIVASA RESORTS LTD.[2]. In fairness, the learned counsel brought to the notice of this Court the judgment of a learned single Judge of this Court in SALE RANGA SWAMY v. SPECIAL COLLECTOR–CUM-LAND ACQUISITION OFFICER[3] wherein similar question with regard to applicability of Section 5 of the Limitation act to applications under Order 21 Rule 106 CPC was upheld. Learned counsel, however, submits that in view of the mandate under Order 21 Rule 106 sub-clause (3) CPC specifically states that application under sub-rule (1) shall be made within thirty days from the date of order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order. Sub-clause (3) of Rule 106 CPC is extracted as under: “106. Setting aside orders passed ex parte etc. – (1)… (2)… (3) An application under sub-rule (1) shall be made within thirty days form the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.” Learned counsel, therefore, states that when the Central Act of Parliament does not provide for applicability of Section 5 of the Limitation Act, even if there is any amendment under the State of AP by insertion of sub- clause (4) by AP Amendment dated 20.01.1992, the said amendment is invalid. The AP Amendment is in the following words: “Add the following as sub-rule (4) after sub- rule (3) of Rule 106: (4) Provisions of Section 5 of the Limitation Act shall apply to applications under sub-rule (3)” Reliance is placed on the decision in G.K.S.H. & T.E. & WORKERS UNION’S case (2 supra) in support of the said argument and the decision first cited is pressed into service to claim that Section 5 of the Limitation Act is not available under Order 21 Rule 106 CPC. 8. The aforesaid contentions are liable to be rejected on facts as well as in the light of the legal position discussed as hereunder. Firstly, as mentioned above, for a decree for about Rs.24,000/- the house in question, which is evidently valued much more is sold to the auction purchaser for an amount of about Rs.4,50,000/-. Ex facie the sale appears to be an excess sale. Secondly, the petitioners themselves have stated that they are not questioning the decree and are prepared to abide by the said decree. The order of the executing Court shows that while filing the present application itself the petitioners have deposited Rs.67,631/-, which includes the sale warrant amount of Rs.32,636/-, poundage of Rs.12,795/-, sale commission of Rs.21,250/- and subsequent interest of Rs.950/-. In view of the said deposit, therefore, neither the decree holder nor the auction purchaser would be put to any prejudice on account of setting aside of the sale. Thirdly, the specific case of the petitioners in E.A.No.795 and 796 of 2003 was that they had no notice of either the suit or the execution proceedings and that they were served by substitute service in both the said proceedings. Since the petitioners are not residing at Guntur and are scattered, they had no knowledge about the ex parte decree in the suit and setting them ex parte in the execution proceedings. 9. The petitioners’ application to set aside the ex parte decree being E.A.No.795 of 2003 was, therefore, allowed by executing Court and the said order in E.A.No.795 of 2003 has become final. The present application being E.A.No.796 of 2003 having been made on the self-same facts, the finding in E.A.No.795 of 2003 that the petitioners had no knowledge of the proceedings in execution petition applies with regard to the present application also and thereby the present application would fall under sub-clause (3) of Rule 106 of Order 21 CPC. Since both the said E.A.Nos.795 and 796 of 2003 are filed simultaneously, it cannot be said that the present application to set aside the sale is filed beyond thirty days of knowledge of setting them ex parte. 10. So far as the question of law raised by the learned counsel is concerned, the same is no more res integra and the judgment of the learned single Judge of this Court in SALE RANGA SWAMY’s case (3 supra) already holds the said point against the petitioner herein. In addition to the above, a Division Bench of this Court in CH. KRISHNAIAH v. CH. PRASADA RAO[4] has recently considered the very same question and paras 15 and 21 of the judgment completely answer the point canvassed by the learned counsel. “15. That takes us to the other submission of learned Counsel for respondent. He submits that by reason of Section 32(1) of 1999 Act and Section 16 of 2002 Act, the amendment made by Andhra Pradesh High Court by way of inserting Order XXI Rule 106(4) cannot be enforced. This submission is misconceived. Section 32(1) of 1999 Act is to the effect that, "any amendment made or any provision inserted to principal Act by a High Court insofar as the same is consistent with the provisions of principal Act as amended thereby stand repealed. Section 16(1) of 2002 Act is also in similar terms. There is no dispute that either 1999 Act or 2002 Act do not introduce any amendments in Order XXI Rule 106 of CPC. Therefore the question of Andhra Pradesh High Court amendment being inconsistent with amended provision does not arise. Section 32 of 1999 Act and Section 16 of 2002 Act render only such amendments made by High Court inconsistent with the provisions of principal Act as modified by amendment Act. In view of admitted position that both these amendment Acts do not amend the provisions of principal Act insofar as Order XXI Rule 106 of CPC is concerned, these two provisions have no effect on the amendment made by Andhra Pradesh High Court or to say in other words, they do not in any manner effect Andhra Pradesh amendment as promulgated by High Court. We may refer to two precedents on this aspect.” “21. Therefore, we hold that notwithstanding the repeal provisions in 1999 and 2002 amendments to CPC, Order XXI Rule 106(4) of CPC as inserted by the High Court in exercise of powers under Section 122 of CPC enables a party to proceedings to file application under Section 5 of Limitation Act seeking condonation of delay in filing an application to set aside ex parte order passed under Order XXI Rule 106(1) of CPC.” 11. The decision of the Supreme Court in MOHAN LAL’s case (1 supra) cited by the learned counsel for the petitioner was arising out the proceedings in Court in Bihar and there being no such amendment as exists in the State of AP, the said decision has to be understood in the light of legislative environment as existed in Bihar State. The Division Bench judgment referred to above has elaborately considered the case law on the point and as such, no repetition thereof is warranted. The revision petition, therefore, is devoid of merits and is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J April , 2010 DSK [1] (1994) 2 SCJ 406 [2] AI R 2009 SC 2337 [3] 2004 (2) ALT 764 [4] AIR 2010 AP 19