IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITOIN No.4840 OF 2010 Between: Smt. B.A. Sathyaprabha ..... PETITIONER AND V. Venkatesulu Naidu and others ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITOIN No.4840 OF 2010 ORDER: This revision is filed against the order, dated 07.10.2010, in E.A.No.20 of 2009 in O.E.P.No.91 of 2009, on the file of the Principal Senior Civil Judge, Chittoor. The revision petitioner is a third party, who filed an application, under Order XXI Rule 89 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”), to set aside the sale held on 03.06.2009. 2. Respondent No.1 is the decree holder, respondent No.2 is the judgment debtor and respondent No.3 is the auction purchaser before the lower Court. In pursuance of the decree obtained by respondent No.1, the sale was held and respondent No.3 became the highest bidder and deposited a sum of Rs.27,10,000/-, which is the value of the property knocked down in his favour. 3. The petitioner herein claims that the property was purchased for a valuable consideration on 15.10.2007; that the petitioner is not aware of the attachment or the execution proceedings before the Court; that she is a bona fide purchaser of the property for a valuable consideration and therefore, having complied with the provisions under Order XXI Rule 89 C.P.C., the sale is to be set aside. 4. Respondent No.1, who is the decree holder, disputed about the purchase of the property by the petitioner and also her right in the property. The attachment was long prior to the alleged purchase. It was also further pleaded that earlier Chittoor Cooperative Town Bank Limited filed E.A.No.68 of 2005 for stay of the sale of the schedule property and the Court held that preferential right should be given to the Bank, since it has a charge and so, from out of the sale proceeds, the debt has to be discharged to the Bank. Respondent No.2, who is the judgment debtor, also did not support the claim of the petitioner. The contention of respondent No.2 is that the petitioner belongs to an influential and powerful political family; that she was taken to the Sub - Registrar Office, Chittoor, to execute a lease deed; that she did not execute any sale deed as claimed by the petitioner; that she could know about the claim of the petitioner and the fraud played on her, only after the receipt of the notice. Respondent No.3, who is the auction purchaser, also disputed the right of the petitioner and also her interest in the property and therefore, respondent No.3 claimed that there are no grounds to set aside the sale. 5. After considering the rival contentions of both parties, the learned Senior Civil Judge, Chittoor, found that the purchase of the property by the petitioner was subsequent to the attachment and therefore, it is against the provisions of Section 64 C.P.C. The lower Court also found that the truth of the purchase claimed by the petitioner is not established and there may be a possibility of collusion or a fabrication of the document and on the two grounds, the said application was dismissed by the lower Court. Aggrieved by that order, the present revision is filed. 6. The point that arises for consideration is whether the order of the lower Court is legal and sustainable? 7. Before considering the rival contentions, it is useful to refer to Order XXI Rule 89 C.P.C., which reads as follows: “Application to set aside sale on deposit – (1) Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court, - (a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment – debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.” As per the above provision, either the judgment debtor or any person interested in the property can file an application after depositing the sale amount along with five percent of the value of the auction money, which is meant for the benefit of the auction purchaser. If these two mandatory requirements are complied by the judgment debtor or the person interested, then the further enquiry as to whether the purchase was before the attachment or after the attachment is relevant. In this case, the judgment debtor is not the person who has filed this application, in which case many of the contentions raised by the auction purchaser or the decree holder would not be relevant. 8. In this case, the claim of the petitioner is that the purchase of the property was on 15.10.2007 from respondent No.2 – judgment debtor. The problem would not have been there, had there been evidence before the lower Court by producing the sale deed and also proving the genuineness of the transaction. It is more so in view of the fact that respondent No.2, who is the judgment debtor, is denying the execution of sale deed and also passing of the consideration. The specific plea of respondent No.2 is that by playing fraud, some documents are said to have been extracted by influential people and therefore, the petitioner does not get any title to the property. This is an important aspect, which has to be considered by the Court and necessary evidence has to be adduced by the petitioner to prove the genuineness of the sale. In case, the sale is not proved, the petitioner does not step into the situation as an interested party to seek setting aside of the sale. The order of the lower Court preceded on certain inferences, but not based on evidence. Evidently, petitioner has also not chosen to examine respondent No.2 – judgment debtor, when the sale is disputed. Respondent No.2 also denies the receipt of the consideration. Therefore, in view of the above circumstances, without considering the genuineness of the sale and without proving the same by necessary evidence, inferences cannot be drawn. Therefore, the order of the lower Court suffers from infirmity. The petitioner shall be given an opportunity to prove the genuineness of the sale. In case, the sale is not proved, then the benefit under Order XXI Rule 89 C.P.C. would not be available to the petitioner. Therefore, in view of the above circumstances, the order of lower Court is set aside and the matter is remanded to the lower Court. The lower Court is directed to dispose of the matter within three months without fail, if necessary, shall be taken by day to day, since the learned counsel for respondent No.3 - auction purchaser represents that for more than one year huge sum of Rs.27,10,000/- was held up and respondent No.3 - auction purchaser did not get any benefit and is put to unnecessary loss and inconvenience. 9. With the above direction, the Civil Revision Petition is allowed. There shall be no order as to costs. ____________________________ N.R.L.NAGESWARA RAO, J February 25, 2011 Note: Registry is directed to dispatch copy of the order within one week to the lower Court. B/O.MD THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITOIN No.4840 OF 2010 February 25, 2011