THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 4989 of 2005 DATE: 24-06-2011 Between: Boyarevula Chinna Naganna (died) per LRs And others .. Petitioners And Belum Swamy Reddy .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 4989 of 2005 ORDER: The revision petition is filed against the order in C.M.A. No.6 of 2003, dismissing the appeal against the order in E.A.No.777 of 2002 in E.P.No.105 of 2001 in O.S.No.467 of 1998. The revision petitioners are the judgment-debtors in execution of the decree in O.S.No.467 of 1998 against the 1st judgment-debtor. The properties were brought to sale and a Court sale was held on 25.06.2002 in respect of the lands in Sy.No.551/1 to an extent of Ac.4- 93 cents and Sy.No.551/2 to an extent of Ac.0-55 cents and the decree holder is the auction purchaser. The sale was for a sum of Rs.1,37,000/- and set off was given to the decree holder. The market value of the schedule property is more than Rs.50,000/-. The E.P. amount claimed is not correct. There was no proper publication. There was fraud and material irregularity and the judgment-debtor suffered substantial loss and hence, the sale is liable to be set aside. The decree holder filed a counter contending that the calculations made in the decree and the claim made in the execution are correct. The valuation claimed by the judgment-debtor is not proper. There are no material irregularities in the proclamation, publication or conduct of the sale. There are no bona fides in the application and hence, the petition is liable to be dismissed. On behalf of the petitioner, P.Ws.1 to 4 were examined and marked Exs.P-1 to P-4. On behalf of the respondents, R.Ws.1 to 4 were examined and after considering the material on record, the learned Principal Junior Civil Judge, Nandyal dismissed the application and aggrieved by the same, C.M.A. No.6 of 2003 was preferred to the III Additional District Judge, Kurnool at Nandyal, which was also dismissed. The point for consideration is whether there is any material irregularity in conduct of the sale and the order of the Courts below are unsustainable? POINT: This being an application under Order XXI Rule 90 of Civil Procedure Code, 1908 (for short “CPC”), a sale can be set aside only on the ground of substantial injury to the judgment-debtor and material irregularity. Order XXI Rule 90 of CPC itself says that a sale cannot be set aside on the ground of irregularity or fraud in publishing or conducting it without proof of substantial injury. Order XXI Rule 90 (3) of CPC also lays down that no application to set aside the sale shall be entertained upon any ground, which the judgment-debtor would have taken when the proclamation was drawn up. The mere absence or defect in attachment of the property is also not a ground to set aside the sale under Order XXI Rule 90 of CPC. Evidently, the prime contention of the judgment debtor-revision petitioner is that property worth more than Rs.50,000/- per acre was in fact for a lesser amount and there was no publication, notice under Order XXI Rule 66 of CPC prior to the drawing of the publication. The lower Court on appreciation of the evidence came to the conclusion that there was a refusal of notice under Order XXI Rule 66 of CPC by the judgment-debtor and the judgment-debtor himself is a litigant and intentionally avoided the notice. It was also noticed by the lower Court that the judgment-debtor was watching the proceedings and allowed the sale to be conducted. It is to be noted that in any Court sale, there is no warranty of title and the participation of the bidders will be less. Even otherwise, the judgment-debtor himself has filed the Insolvency Petition after the sale was held. Learned counsel for the revision petitioner contends that the lower appellate Court has found that no certificate from the Sub-Registrar is filed to show the market value and a certificate issued by the Sub- Registrar is filed, which shows the value of the land, which was sold is Rs.50,000/- per acre. But it has nothing to do with the facts of this case since the inadequacy of price is not a ground to set aside the sale and the judgment-debtor has not taken the objection with regard to the price when the proclamation was drawn and the sale was held. Apart from it, as can be seen from the grounds of irregularity pleaded by the revision petitioner, the sale was in fact for a sum of Rs.1,37,000/- and after set-off was ordered for Rs.70,261/-, the remaining amount to be deposited is Rs.66,739/-. It was further pleaded that the decree holder has deposited a sum of Rs.8,927/- less than the amount to be deposited and, therefore, the sale is not valid. In fact, the lower appellate Court has not considered this objection and the Executing Court has considered this objection. A decision relied upon in the case of USMANSAB HATELSAHAB v. R.L.MEHARWADE[1] pleading that if the auction purchaser failed to pay the purchase money in 15 days, the sale is liable to be set aside. The lower Court has accepted that there is a shortage of deposit of the money and it is an error in arithmetical calculation and consequently it can be corrected. The lower Court relied on a decision reported in the case of B.K.BRAHMAM v. G.S.M.HASSAIN[2] that there is a mistake in calculation committed by the clerk, the deficit amount can be permitted to be deposited by condoning the delay. This judgment is against the judgment reported in the USMANSAB HATELSAHAB’s case as referred to above. This Court also in a decision reported in the case of V.VEDANDA VYSULU (DIED) PER LRs v. K.PURUSHOTHAM[3], after considering the power of the Court for extension of time for deposit of the non-judicial stamps or for the balance of the sale consideration held that the Court has no power even in spite of bona fides of the decree holder-auction purchaser. That was the view of the Division Bench in the case of MUDRAGADA SURYANARAYANAMURTI v. SOUTHERN AGENCIES, RAJAHMUNDRY AND ANOTHER[4]. Therefore, in view of the above circumstances, the lower Court is directed to dispose of the case afresh keeping in view the legal position referred to above. Accordingly the revision petition is allowed and, the order under appeal and the order of the Executing Court are set aside, and the matter is remanded to the lower Court for the limited purpose of deciding as to whether the deposit of the balance of sale consideration was in accordance with Order XXI Rule 85 of CPC or not and to follow the judgments referred to above, and to dispose of the case within three months. ________________________ N.R.L.NAGESWARA RAO, J 24-06-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 4989 of 2005 DATE: 24-06-2011 MR [1] A.I.R. 1999 SUPREME COURT 96 [2] A.I.R. 1968 ANDHRA PRADESH 309 [3] 2011 (2) A.L.T. 599 (A.P.) [4] AIR 1962 AP 271