IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.14 OF 2009 Between : R.Seetha Rama Rao .... PETITIONER A N D M/s. Syndicate Bank and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.14 OF 2009 O R D E R: This Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the order, dated 12.12.2008 in E.A.No.98 of 2007 in E.P.No.135 of 2000 in O.S.No.5 of 1993 on the file of the Senior Civil Judge, Khammam, whereunder and whereby, the application filed under Order XXI Rule 90 CPC to set aside the auction proceedings conducted on 29.03.2007 in the above execution proceedings was dismissed. 2. The petitioner and respondents 2 and 3 herein are the defendants, and respondent No.1 herein is the plaintiff, in the suit. Respondent No.2 herein is the auction purchaser in the execution proceedings. 3. Original Suit No.5 of 1993 on the file of the Subordinate Judge, Suryapet, filed by the plaintiff for recovery of money was decreed with costs. As the defendants did not pay the decreetal amount, the plaintiff filed the Execution Petition and the same was allowed. By order, dated 14.02.2007, the plaintiff bank got issued sale proclamation by way of publication in ‘Janatha Telugu News Paper’ on 08.03.2007 mentioning the market value of the house property at Rs.3 lakhs. As per the valuation certificate issued by the competent Sub-Registrar, the market value of the house property is Rs.10,15,012/-. There is a considerable variation of Rs.7,15,012/- between the valuation of the property got published by the plaintiff in the news paper and the valuation according to the Sub-Registrar. Petitioner filed the application to set aside the auction proceedings in the execution proceedings, which was dismissed by the impugned order. Hence, the Civil Revision Petition. 4. Heard. 5. The contention of the learned counsel for the petitioner/judgment debtor is that the value of the execution petition schedule property is shown far less than the market value for obvious reasons; that the petitioner /judgment debtor has not received any notice in the execution proceedings; that Order XXI Rule 64 CPC has not been properly complied with and therefore, he prays to set aside the impugned order. 6. On the other hand, learned counsel for respondent No.1-Bank contended that the sale notice was served on the petitioner and he has not furnished the value of the property to the executing Court; that the son of the petitioner as well as the counsel appearing for the petitioner were present at the time of conducing the public auction in the Court; that the counsel for the petitioner has not raised any objection with regard to under value of the property and, therefore, there are no grounds to interfere with the impugned order. 7. There cannot be any dispute that the sale can be set aside in an application under Order XXI Rule 90 CPC only on two grounds namely (1) material irregularity; and (2) fraud in publishing or conducting the sale. 8. In the execution proceedings, the petitioner has received the summons. Though it is contended that the petitioner has not received the summons, still there is no material to show that the petitioner has not received the summons. The contention of the learned counsel for the petitioner herein is that there is a considerable variation with regard to fixing the sale price which is the material irregularity. Before conducting the auction, both the petitioner and respondent No.1 were asked to furnish the value of the property sought to be sold in the execution proceedings. When the value of the property has been mentioned in the execution proceedings by respondent No.1, and if it is not representing the true and correct value of the property, then nothing prevented the petitioner from giving his valuation by obtaining the necessary certificate from the competent authorities. That has not been done by the petitioner. Having received the notice in the execution proceedings, the petitioner failed to file any counter stating that the value of the property sought to be sold is far less than the market value of the property assessed by the Sub Registrar. He did not contest the case. It is evident from the record that when the sale was conducted, the son of the petitioner as well as the counsel appearing for the petitioner were present in the Court. However, the counsel for the petitioner before the Court below did not raise any objection with regard to the valuation of the property. Therefore, under no stretch of imagination, it can be said that it is a material irregularity so as to interfere with the impugned order. 9. The valuation certificate filed by the petitioner after the sale was conducted cannot be taken as the basis for estimating the correct value of the property. In the entire affidavit filed in support of the petition nowhere it is stated that there is material irregularity in conducting the auction on 29.03.2007. Therefore, in the absence of any material irregularity, it is not a case of fraud in publishing or conducting the sale. Therefore, none of the conditions under Order XXI Rule 90 CPC has been established so as to set aside the sale and in the absence of any evidence on record, the question of setting aside the sale does not arise. 10. Learned counsel for the petitioner placed reliance on a decision reported in C.Rayam Babu V. B.K.L.Traders[1],wherein it was held thus: “He also relied on a decision reported in Dr.A.U.Natarajan and Another V.Indian Bank, Madras 12, wherein it is was held thus: We are therefore of opinion that the court’s power to fix an upset price for the property, which includes within it a right to reduce the upset price whenever necessary has not only been available to the court all through, but such a right is a irremovable one, and the said right has not been impinged in the least by the second proviso introduced by Act 104 of 1976. Of course, as pointed out in susila V. Sararswathi Ammal, when the court-fixes the upset price, the court is not determining the rights of any of the parties before it, and the fixation of the up set price is only for facilitating the conduct of the sale and, at the same time, safeguarding the interests of the judgment debtor by fixing a reserve price. Notwithstanding the fixation of the upset price and notwithstanding the fact that a bidder has offered an amount higher than the upset price, it will still be oven to the judgment-debtor to approach the executing court and adduce proof that the property has been sold for a low price on account of some material irregularity or fraud in the publication or conduct of the sale and have the sale set aside. There is no dispute about the proposition of law laid down by the apex Court. In the case on hand, the Executing Court has not exercised its discretion judiciously in fixing the upset price and secondly the procedure as contemplated under Order XXI Rule 64 CPC has not been followed to know whether the property is divisible and whether a part of the property can be brought for sale which would satisfy the decree. In my considered opinion, these two aspects amount to material irregularity, which would vitiate the sale. Hence, the sale is liable to be set aside as no prejudice of whatsoever would be caused if the sale is set aside. Admittedly, half of the decretal amount has been satisfied”. The above decision is not applicable to the facts of the present case, in view of the fact that in that case, without there being any material, the Executing Court fixed the upset price therein. In the said case, whether the property is divisible or not was not considered and under those circumstances it was held that the sale is liable to be set aside. In the case on hand, the petitioner herein did not specifically state in the affidavit filed in support of the petition as to the material irregularity in conducting the sale. In the absence of any material irregularity in conducting the sale, the question setting aside the sale does not arise. The impugned order does not suffer from any infirmities so as to call for the interference by this Court and the Civil Revision Petition is devoid of merits and is liable for dismissed. 11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _______________ K.C.BHANU, J FEBRUARY 07, 2011. YVL [1] 2010-LAP-0-266