IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.212 OF 2010 Between : P.Chamundeswara ... PETITIONER A N D C.Swapna and others …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO. 212 OF 2010 ORDER: This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) is directed against the order, dated 23.11.2009, in E.A.No.28 of 2009 in E.P.No.49 of 2005 in O.S.No.27 of 2002 on the file of Senior Civil Judge, Gooty, whereunder and whereby, the application filed under Section 47 C.P.C. to set aside the public auction sale held on 01.12.2008, in E.P.No.49 of 2005, which was knocked down in favour of petitioner / respondent No.3, was allowed. 2. Heard. 3. The brief facts are that Respondent No.3 filed O.S.No.27of 2002 on the file of Senior Civil Judge, Gooty, and obtained decree against respondent No.4. Thereafter, respondent No.3 herein filed Execution Petition No.49 of 2005 for realization of the decretal amount and brought the Execution Petition schedule property for sale. Item No.1 of the schedule property was sold in the Court auction held on 01.12.2008. The sale was knocked down in favour of the petitioner herein for a sum of Rs.2,55,000/-. 4. The Executing Court set aside the sale on two grounds the viz., (i) no publication of sale giving wide publicity with regard to conducting of action, (ii) that the Judgment Debtor is not a party in fixing the value of the suit property and therefore, the sale held in E.P.No.49 of 2005 dated 01.12.2008 is not valid in the eye of law. Challenging the same, the present Civil Revision Petition is filed. 5. Learned counsel appearing for the petitioner vehemently contended that the application under Section 47 C.P.C. is not maintainable in view of the fact that the sale can be set aside on the ground of material irregularity under order XXI Rule 90 C.P.C; that sale held on 01.12.2008 has become final and no appeal is filed by the decree holder and therefore, the application under Section 47 C.P.C. is without jurisdiction, and hence, he prays to set aside the same. 6. The Executing Court has power to decide the sale in accordance with Section 47 C.P.C. The underlying object of Section 47 C.P.C. is to provide in expensive and expeditious remedy for determination of all questions relating to the execution of a decree only in execution proceedings without recourse to a separate suit. It thus seeks to prevent needless and unnecessary litigation. Section 47 deals with pre sale illegalities committed in the execution. Whereas post sale illegalities or irregularities causing substantial injury to the judgment debtor are covered by Order XXI Rule 90 C.P.C. After conducting the sale, the Judgment Debtor has got a right to file an application under Order XXI Rule 90 C.P.C. Order XXI Rule 90 C.P.C. reads as follows: “Application to set aside sale on grounds of irregularity or fraud:- Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a retable distribution of assets, or whose interests are affected by the sale, may apply to the Court to get aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. Sub Rule 2 says no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.” As per Sub Rule (2) of Rule 90 of Order XXI C.P.C., no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Therefore, the only provision under which the judgment debtor can file an application to set aside the sale of immovable property on the ground of irregularity or fraud in execution of a decree is under Order XXI Rule 90 C.P.C. That remedy has not been availed by the judgment debtor. Now the present application is filed under Section 47 C.P.C., which reads as follows: “All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.” 7. Section 47 C.P.C., comes into operation with regard to the questions arising between the parties relating to the execution, discharge or satisfaction of the decree. It does not deal with setting aside the sale, because the specific provision is incorporated under Order XXI Rule 90 C.P.C. But this Court in J.Malla Reddy V. I.Shantamma and others[1], held thus: “The effect of insertion of Explanations I and II as above is to meet the injustice: where a decree is nullity or is un- executable even if such a question is raised and decided or is deemed to have been decided on account of judgment being silent cannot exclude the executing Court to go into the questions about the un-executability of the decree or it having become nullity. The said question would cover “execution, discharge or satisfaction of the decree” used in Section 47. The Explanations I and II, now make it clear to set at rest the conflict of decisions on the point whether a claim for possession by purchaser in Court auction in pursuance of execution of a decree is or is not a question relating to execution of the decree. In view of Explanation particularly, Explanation II (b) makes it clear that the executing Court can go into all the questions between the parties relating to execution, discharge or satisfaction of the decree and such a question is a question falling under Section 47”. 8. So from the above decision it is clear that when there is an un executable decree or the decree passed by the Court is nullity, Section 47 C.P.C., can be invoked. The Division Bench of this Court also held that if there is an irregularity in conducting the sale, the Executing Court has jurisdiction in entertaining the application under Order XXI Rule 90 C.P.C. Therefore, the respondents herein have to approach the Court by filing the application under Order XXI Rule 90 C.P.C. The respondents cannot circumvent the said provision and file an application under Section 47 C.P.C., especially when respondents are contenting that there is a irregularity in publishing the sale notice and also the judgment debtor has not furnished his value of property to be sold. In the facts and circumstances of the case, judgment debtor has a remedy under Order XXI Rule 90 C.P.C. Therefore, the trial court committed illegality in setting aside the sale. Hence, the impugned order is set aside. However, it is made clear that the remedies if, any, available to the respondents are left open. 9. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs. _______________ K.C.BHANU. J NOVEMBER 24, 2010. YVL [1] 2009(5) ALT 496 (D.B)