HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.564/2009 Dt.7-8-2009 1.Bonthu Pushpavathi and another ..Appellants Vs. 1.Ananda Raj Chit Private Limited, represented by its Branch Manager and G.P.A. Holder, K.M. S. Srinivasa Raju and another …Respondents HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.564/2009 ORAL JUDGMENT This second appeal by the Judgment Debtors-defendants is directed against the judgment and decree of the II Additional District Judge, East Godavari at Amalapuram dt. 20-1-2009 passed in CMA No.21/2007, whereunder, learned Judge dismissed the appeal confirming the order of the Senior Civil Judge, Amalapuram dt. 4-6-2007 passed in EA No.92/2005 in EP No.3/2002 in OS No.30/1999 dismissing the petition filed under 21 Rule 90 CPC to set-aside the sale of “A” schedule property held on 24-1-2005 For the sake of convenience, the parties will be referred to as arrayed in the execution application. The Judgment Debtor No.1 is the wife of Judgment Debtor No.2. For due execution of the decree obtained on 19-10-2001, Respondent No.1-decree holder (plaintiff) filed EP No.3/2002 seeking attachment of property ie., terraced building bearing No.11-2-1 in RS No.175/1 of Pulletikurru Grampanchayat and sale of the property for realization of the debt due under the decree obtained. The attachment was effected on 9-2-2002. EA No.12/2005 under Section 47 CPC was filed and the same was dismissed on 11-7-2005. When the executing court issued notice under Order 21 Rule 54(1) (A) CPC to the Judgment Debtors, a claim petition was filed by one Guthula Suryanarayana claiming the property basing on the agreement of sale and the same was dismissed on 7-10-2004. Ultimately, the property was sold on 24-1-2005. On sale of the property, the above EA No.92/2005 was filed by the Judgment Debtors for setting aside the sale of plaint “A” schedule property held on 24-1-2005 on the ground of material irregularity and fraud in publishing and conducting sale. According to the judgment debtors, the sale cannot be conducted till completion of 15 days as mandated under Order 21 Rule 68 from the date of issuing proclamation, which was given on 14-1-2005 and the same is in violation of mandatory provisions. Further the terraced building with Door No.11-4 over the site of 200 sq. yards is Rs.4 lakhs as per the certificate issued by the Sarpanch, Grampanchat and the survey number is incorrect and it is mentioned as RS No.175/1 and its extent 200 sq. feet is incorrect. The Decree holder intended to bring another property for sale, hence, Judgment Debtor No.2 filed a petition under Section 47 CPC objecting sale of the property pointing out all the irregularities. While the said application was pending, sale was conducted on 24-1-2005. The decree holder sought permission to bid and set of the decree amount and it was allowed without issuing any notice to the Judgment Debtors and there was improper publication of the proposed sale as it was published in a news paper not having circulation and therefore the sale has to be set aside. The first respondent-decree holder resisted the petition stating that the judgment debtors never raised any objection with regard to schedule at the time of attachment and a claim petition was filed by one Guthula Satyanarayana Murtrhy in EA No.110/2003 on the ground that he purchased the property under an agreement of sale, which was dismissed on 7-10-2004.The boundaries mentioned in the petition schedule are also the boundaries given in the proclamation and there was no illegality in conducting sale. On behalf of the judgment debtors, P.Ws.1 to 3 were examined and Exs.A-1 to 5 were marked. On behalf of the respondent No.1-decree holder, RWs. 1 and 2 were examined but no exhibits were marked. The Executing Court after considering the evidence, oral and documentary, dismissed EA holding that it is no where mentioned in the evidence adduced that there is fraud played in bringing the property for sale and conducting the sale and no weightage can be given to the certificate issued by Sarpanch that the property fetches Rs. 4 lakhs since no person connected with the same was examined. Aggrieved by the dismissal of EA, the judgment debtors preferred appeal. The lower appellate court confirmed the same holding that though in proclamation the area is given 200 sq.feet in stead of 200 sq.yards, the same need not be a factor that may be taken into consideration and the same would not amount to illegality in conduct of sale and P.W.1 does not make any reference to the dates relevant to ascertain that there is no time gap of 15 days from the date of proclamation and date of sale and accordingly dismissed the appeal. Both the courts concurrently held that there is no fraud played by the decree holder in bringing the property for sale and there is no irregularity in conducting of sale. Under explanation to Order 21 Rule 90 CPC the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside sale under Order 21 Rule 90 CPC. The judgment debtors failed to satisfy the court that they have sustained substantial injury for the reason of fraud or irregularity. The findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law, much less substantial question of law arises for consideration in the second appeal. The second appeal is accordingly dismissed at the admission stage. ______________ A.GOPAL REDDY,J Dt.7-8-2009 kmr