IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE TWENTY SEVENTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION No.5656 of 2010 Between: Kallu Uttam Reddy … Petitioner And State Bank of Hyderabad (ADB), Miryalguda Branch. … Respondent Counsel for the petitioner: Sri J. Ugra Narasimha Counsel for the respondent: Sri Addepalli Suryanarayana This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION No.5656 of 2010 ORDER:- This Civil Revision Petition arises out of order, dated 15.11.2010 in E.P.No.115 of 2005 in O.S.No.45 of 2001 on the file of the learned Senior Civil Judge, Miryalguda. The petitioner is the judgment debtor in the suit filed by the respondent for recovery of certain amounts. As the petitioner failed to discharge the decree debt, the respondent filed E.P.No.115 of 2005 for sale of the E.P. schedule properties. Under order, dated 20.04.2010, the Court below has directed issuance of proclamation of sale. Accordingly, the respondent has filed proclamation and publication, which was taken on file on 07.07.2010. Since then the sale was being adjourned from time to time. Eventually, the sale was held on 15.11.2010, whereunder one of the items of the E.P. schedule properties was sold for a sum of Rs.6,30,000/-. In this revision petition, the only plea raised by the petitioner and argued with considerable force by Sri J. Ugra Narasimha, learned counsel for the petitioner, is that the sale, without a fresh proclamation as envisaged under Order XXI Rule 69(2) of the Code of Civil Procedure, 1908, after postponing of the sale beyond 30 days, suffers from serious irregularity warranting interference of this Court. Sri Addepalli Suryanarayana, learned counsel for the respondent, opposing the said contention, submitted that Rule 29(2) of Order XXI does not lay down the requirement of fresh proclamation in absolute terms and that whenever judgment debtor consents to waive such fresh proclamation, the sale can be held on the adjourned date without such fresh proclamation. The learned counsel further submitted that by filing applications repeatedly for postponing sale, the petitioner has waived fresh proclamation and that as the sale of the property fetched far more than the market price, the petitioner has not suffered substantial injury. The necessity of deciding these issues is obviated for the simple reason that the petitioner has not approached this Court before the sale was held. He waited till the sale was held on 15.11.2010 and then filed the present Civil Revision Petition to nullify the sale on the ground that fresh proclamation was not made even though the sale was adjourned beyond 30 days. Even if the petitioner’s contention is accepted, the sale will be liable to be set aside on the ground of material irregularity. Order XXI Rule 90 of the Code of Civil Procedure (CPC) envisages filing of an application by the decree holder or the purchaser or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale, before the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. Under clause (2) of Rule 90, no sale can be set aside on the ground of irregularity or fraud, unless the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. If the petitioner was aggrieved by the sale, he ought to have filed an application under Order XXI Rule 90 for setting aside the sale, as the ground which the petitioner has raised in the Civil Revision Petition squarely falls under clause (1) of Rule 90, namely; irregularity in publishing the sale. In my opinion, the petitioner cannot be permitted to invoke the jurisdiction of this Court under Section 115 CPC without first approaching the Court below under the abovementioned provision. No reasons are assigned by the petitioner for bypassing the aforementioned remedy. On this short ground, the Civil Revision Petition is dismissed. As a sequel to dismissal of the Civil Revision Petition, interim order granted on 03.12.2010 is vacated and CRPMP.No.7523 of 2010 is also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 27.08.2011 Note:- Registry shall send the record back to the trial Court immediately. ES