IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY EIGHTH DAY OF JANUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISIION PETITION No.493 OF 2006 BETWEEN: J.Satyanarayana Murthy. …PETITIONER AND Tadikonda Koteswara Rao and others …RESPONDENTS CIVIL REVISIION PETITION No. 6200 OF 2006 BETWEEN: Kota Pushpavati and another …PETITIONERS AND Tadikonda Koteswara Rao and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISIION PETITION Nos. 493 OF 2006 AND 6200 OF 2006 COMMON ORDER: Both the Civil Revision Petitions arise out of a common order in C.M.A.No.38 of 2002, dated 29-06-2005 passed by the IX Additional District Judge (Fast Track Court), Guntur. The appeal arises out of an order in E.A.No. 284 of 2001 in E.P.No. 178 of 1995 in O.S.No. 63 of 1994 on the file of the Principal Senior Civil Judge, Tenali. 2. A suit O.S.No. 63 of 1994 was filed by Tadikonda Koteswar Rao for recovery of money and decree was obtained in execution of the decree, the properties were brought to sale. The judgment debtors 1 and 3 filed an application under Order.XXI, Rule.83 of the Civil Procedure Code (for short “C.P.C.”) to grant permission for sale of the property by private sale and when that application was dismissed by the lower Court, C.R.P.No. 3518 of 1998 was filed and this Court in its order, dated 24-12-1998 the matter was remanded to the lower Court setting aside the order of the lower Court and in that order, the judgment debtors have offered to pay a sum of Rs.20,000/- towards the decretal amount. But however, before that order was passed the sale was held on 28-08-1998. Consequently, the judgment debtors have filed E.A.No. 9 of 1999 was dismissed on 24-02-1999, which was an application under Order.XXI, Rule.83 C.P.C. As against that order, C.R.P.No.929 of 1999 was filed and this Court in its order dated 08-02- 2001 considered the rival objections. With regard to the conduct of the sale, the material irregularities alleged by the judgment debtors and also the factum of deposit of some money by the judgment debtors and also found that the decree holder is not seriously disputing about the setting aside the sale held by the lower Court and passed the following order. “Accordingly the Revision Petition is disposed of directing the Court below to take E.A.SR.No. 648 said to have been filed on 01-02-1999 under Order.21, Rule.90 of CPC, for setting aside the sale, on record and pass appropriate orders, in accordance with law within three months from the date of receipt of a copy of this order keeping in view of the observations made by this Court in this revision petition. The petitioners are directed to deposit the entire balance amount if any due under the decree together with costs of the E.P., within two months from this date. It is ordered that the auction purchaser is permitted. It is ordered that the auction purchaser is permitted, withdraw the amount forthwith which he deposited pursuant to the auction. However the petitioners-J.Drs 1 and 3 shall pay interest at the rate of Rs.12% p.a. on the amount so deposited by the auction purchaser within the time to be prescribed by the Court below. No costs”. 3. Thereafter, in pursuance of the directions of the High Court, E.A.No. 284 of 2001, which was the application under Order.XXI, Rule.90 of C.P.C., was numbered and ultimately dismissed by the Principal Senior Civil Judge as no evidence was adduced and against that order, the appeal was preferred to the IX Additional District Judge (Fast Track Court), Guntur. The learned District Judge after considering the rival contentions and also the orders of the High Court also found some irregularities and allowed the C.M.A. setting aside the sale orders, it relates to item No.2 of the schedule property and ordered refund of the amount with interest at the rate of 12% P.A., as per the orders in C.R.P.No. 929 of 1999 and confirmed the sale with regard to item No.1 of the schedule property and the lower Court also gave some directions in C.R.P.No. 929 of 1999. Aggrieved by the orders of setting aside the sale to the part of the item No.2, the auction purchaser has preferred the C.R.P.No. 493 of 2006 and whereas the judgment debtors have preferred the C.R.P.No. 6200 of 2006 challenging the order of the lower Court in so far as it relates to the confirmation of the sale with regard to item No.1 of the property. 4. Now the points that arise for consideration are: 1) Whether the order of the lower Court in setting aside the part of the sale is legal? 2) Whether the order of the lower Court in giving directions to the parties to deposit the money and interest thereon is legal and sustainable? 5. POINTS: So far as the maintainability of this application is concerned, the learned Counsel for the auction purchaser contends that when the sale is sought to be set aside on material irregularity and an application is filed under Order.21, Rule.90 C.P.C., it has to be filed within a period of 90 days from the date of sale and evidently in this case E.A.No. 284 of 2001, which was numbered as per the directions of the Hon’ble High Court filed on 01-02-1999, whereas the sale was held on 28-08- 1998 and therefore, the petition is not maintainable and it is barred by time. 6. It was sought to be contended by the judgment debtors that in view of the directions of the High Court in C.R.P.No. 929 of 1999, this plea is not open and the question of limitation does not arise. This contention of the judgment debtors cannot be accepted in view of the mandatory provisions of setting aside of the sale under Article.127 of the Limitation Act. Merely because stay of all other proceedings in the E.P. granted by a Court does not stop the period of limitation when it has started to run from the date of sale. Therefore, any concession given by the Court or any direction given by the Court cannot ignore the period of limitation prescribed under the statute as rightly contended by the learned counsel for the auction purchaser. 7. The facts in this case are different and they cannot be viewed in the background of Order.21, Rule.89 or Order 21, Rule.90 CPC. Evidently when the matters were heard in C.R.P.No. 929 of 1999, by that time part of the decretal amount was paid by the judgment debtors and subsequently, the total amount is said to have been deposited by the judgment debtors. The order of this Court clearly shows that the Court wanted to protect the interest of both parties since the value of the property sold is said to be more and the debt due by the judgment debtors appear to be on a lower side. Evidently for a sum about Rs.82,000/- is due under decree, two items of the property worth of Rs.8,00,000/- or more was sold and in fact the judgment debtors never intended to evade the liability and wanted a permission to be given to them to sell the property privately and discharge the debt. But, before any such permission or request could be considered in the C.R.P., the sale was already held by the Court and consequently, some equitable order was sought to be passed by the Court. Therefore, the present dispute between the parties has to be kept in mind keeping in view the interest the Court has sought to protect between the parties in C.R.P.No. 929 of 1999. 8. As the order of the High Court, as already been extracted above, it is quite clear that the auction purchaser was permitted to take back his money and the judgment debtors are directed to deposit the entire decretal amount and the costs. If the Court felt that the issues to be dealt between the parties relate to the execution or determination of the rights under sale both the above directions would not have been given for the reason as the auction purchaser, who is interested to get the rights in an auction sale cannot take away the money if the sale is to be confirmed. If the sale is to be confirmed and to be held as valid, there can be no direction to the judgment debtors to deposit the decretal amount since already sale was held and amount was deposited by the auction purchaser for realisation of the decretal debt. Therefore, the above directions were consciously given by the Court taking into consideration the various complaints of irregularities said to have been committed in bringing the properties to the sale. In fact, in the C.R.P., though the auction purchaser is not a party to the proceedings, but still in the application to set aside the sale has relied upon the contents of the order, which were given by the High Court. It was not his contention that the said directions are derogative of his rights of sale and the purchaser is not bound by the same. He has continuously complaining for not depositing the interest and not fixing of the time by the Court. Therefore, it is quite clear that the auction purchaser also does not seriously dispute about the validity of the directions given by this Court. If the above directions are kept in view, it is quite clear that the parties are deriving interest from them to follow the same. In fact, the order of the appellate Court also reflects the directions given by this Court in C.R.P.No. 929 of 1999 making direction to the judgment debtors to deposit the decretal amount due and also payment of the interest or redeposit of the money by the auction purchaser. If the appellate Court is to confirm the sale with regard to item No.1 of the property, there is no reason or need as to why a further direction shall be given to the judgment debtors to deposit the entire decretal amount and costs and it will be double liability for the judgment debtors in loosing the property and also depositing the money. Therefore, the order of the lower Court suffers from serious infirmities and also not taking into consideration the directions given by this Court in C.R.P.No. 929 of 1999. 9. Therefore, in view of the circumstances, I feel if the directions given by this Court in C.R.P.No. 929 of 1999 and the interest of the auction purchaser is further protected, the parties will have necessary justice. Evidently, in a case where an auction sale has been conducted and if it is to be set aside at the instance of the judgment debtor, deposit of the money, 5% of the purchased money has to be deposited by the judgment debtors. Under Order.21, Rule.90 CPC, if it is the case of the irregularity no amount need to be deposited only irregularity can be canvassed, but in this case evidently the order of this Court is to direct deposit of the entire decretal amount and thereby, the Court intended to treat this application on par with an application under Order.21, Rule.89 CPC, where under, a sale can be set aside only on deposit of the decretal amount. 10. Therefore, in view of the above circumstances, it is just and necessary that the judgment debtors shall be directed to deposit 5% of the purchase money, which shall be permitted to be withdrawn by the auction purchaser since his interest is also to be protected, huge sum has been locked up in Court because of the litigation of no fault of him further more. Evidently the auction money, which has been deposited by the judgment debtors will be invested in any bank by the lower Court and if that investment is done, the auction purchaser is at liberty to withdraw the money if not already withdrawn and the judgment debtors shall pay the difference of interest at the rate of 12% as directed by this Court by deducting the interest gained by the deposit in any bank by the lower Court from the date of auction of the purchase money or earlier withdrawal if any, till this date. The auction purchaser is permitted to withdraw the auction money immediately. The judgment debtors are permitted to deposit 5% of the purchased money within two months, failing which, an interest shall be paid at the rate of @ 12% P.A., over that amount. 11. Accordingly, these Civil Revision Petitions are disposed of and the order of the lower Court is set aside and E.A.No. 284 of 2001 is allowed. Each party shall bear their own costs. Date: 28-01-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISIION PETITION Nos. 493 OF 2006 AND 6200 OF 2006 January 28, 2011 INL