IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1817 of 2009 BETWEEN P.V. Lakshmi. …PETITIONER AND P. Narsimhulu and two others. …RESPONDENTS Counsel for the Petitioner: MR. K.V. SUBRAHMANYA NARUSU Counsel for the Respondent No.2: MR. M.S. RAMCHANDRA RAO The Court made the following: - ORDER: This revision is at the instance of the judgment debtor whose application E.A.No.906 of 2008 in E.P.No.93 of 2003 to set aside the sale under Order 21 Rule 89 of the Code of Civil Procedure was dismissed by the executing Court and the said order dated 08.12.2008 was confirmed in appeal being C.M.A.No.23 of 2009 by the learned II Additional Chief Judge, City Civil Court, Hyderabad by order dated 19.03.2009. Though the dismissal of application under Order 21 Rule 89 CPC is rare, the facts and circumstances of the case satisfied the executing Court as well as the lower appellate Court that the said application was not maintainable for various reasons including the past round-of litigation. 2. The house property bearing No.1-9-312/E/9/1/A admeasuring 50.60 sq. yards was the subject matter of the execution proceedings in E.P.No.93 of 2003. The first respondent is the decree holder whereas the second respondent is the auction purchaser and the third respondent herein is the purchaser of the said property from the judgment debtor/petitioner. 3. For the sake of convenience the parties are referred to by their aforesaid status. 4. The brief facts relevant for appreciating the matter are as follows: (a) The decree holder filed O.S.No.148 of 2002 for recovery of Rs.1,00,000/- with interest at 12% before the Junior Civil Judge, Dharmavaram, against the judgment debtor. The said suit was decreed on 06.08.2002 and the said decree was transferred to the Court of III Junior Civil Judge, City Civil Court, Hyderabad for execution. On 23.03.2003 the decree holder filed E.P.No.93 of 2003 and obtained attachment of the house in question on 02.04.2003. The said attachment was effected by affixture on the house in question on 08.04.2003. Meanwhile, the judgment debtor, allegedly, entered into an agreement of sale in favour of purchaser (R3 herein) on 02.09.2002 and later executed a registered sale deed in her favour on 08.05.2003. In the execution petition filed by the decree holder the said property was brought to sale and in an auction conducted on 23.07.2004 the auction purchaser (R2) purchased the property for Rs.6,40,000/-. (b) The purchaser from judgment debtor (R3) filed E.A.No.638 of 2004 under Order 21 Rule 89 CPC by depositing the decretal amount and poundage seeking to set aside the said auction sale dated 23.07.2004. By order of the executing Court dated 16.09.2004 the said application of purchaser from judgment debtor was allowed. Questioning the said order the auction purchaser filed C.M.A.No.304 of 2005 before the XI Additional Chief Judge (FTC), City Civil Court, Hyderabad. By order dated 13.08.2007 the said appeal was allowed, inter alia, on the ground that the purchase of the house by the purchaser of judgment debtor under registered sale deed dated 08.05.2003 is void under Section 64 CPC, as it is subsequent to attachment of the house dated 02.04.2003. The said purchaser questioned the order of the lower appellate Court in CRP.No.351 of 2008, which was, however, dismissed by this Court on 15.02.2008. (c) The judgment debtor, therefore, filed the present E.A.No.906 of 2008 on 07.07.2008 under Order 21 Rule 89 CPC by claiming that the deposits of decretal amount and poundage by her purchaser in the earlier application E.A.No.638 of 2004 be treated as deposit on behalf of the judgment debtor. On contest, the said application was dismissed by the executing Court by order dated 08.12.2008 and the appeal filed by the judgment debtor before the lower appellate Court has been dismissed on 19.03.2009 under the impugned order. 5. Heard learned counsel for the judgment debtor and the auction purchaser. 6. Mr. K.V. Subrahmanyam Narusu, learned counsel appearing for the judgment debtor, has raised the following contentions: (1) that the very transfer of execution proceedings from the Court of Junior Civil Judge, Dharmavaram to III Junior Civil Judge, City Civil Court, Hyderabad is contrary to Section 39(3) CPC; (2) the deposit of the decretal amount and poundage by purchaser of judgment debtor enures to the benefit of judgment debtor, as there is no objection from the said purchaser for treating the deposit as on behalf of judgment debtor for the purpose of present application; (3) under Article 127 of the Limitation Act, though there is limitation of 60 days for making application for setting aside the sale, the present application of the judgment debtor is in continuation of the earlier identical application filed by her purchaser in E.A.No.638 of 2004 and that there is no limitation prescribed for deposit of amount; (4) the valuation of the property is above Rs.4,00,000/- even by conservative estimate and the sale of entire property comprising of three storied structure is wholly unjustified keeping in view the decretal amount being hardly Rs.1,09,000/-. The auction sale, therefore, is excessive and contrary to Order 21 Rule 64 CPC. He also supports the said contention by placing reliance upon three decisions of the Supreme Court in AMBATI NARSAYYA v. M. SUBBA RAO[1]; BALAKRISHNAN v. MALAIYANDI KONAR[2] and SAI ENTERPRISES v. BHIMREDDY LAXMAIAH[3]. 7. Mr. M.S. Ramchandra Rao, learned counsel for the respondent No.2/auction purchaser submits that the very application under Order 21 Rule 89 CPC filed by the judgment debtor is not maintainable, firstly, on the ground that it is filed four years after the sale and barred by article 127 of the Limitation Act; secondly, the point relating to alleged violation of Section 39(3) CPC was never raised earlier and is for the first time being raised now and even otherwise the same is not sustainable. He also submitted that the judgment debtor was a party to the earlier identical application moved by her purchaser in E.A.No.368 of 2004 and she having not made any claim, she is barred by the principles of constructive res judicata and lastly, in view of the decision of the Supreme Court in DADI JAGANNADHAM v. JAMMULU RAMULU[4] the period of 60 days applies not only for making application but also for making the deposit necessary for making such application. 8. In the light of the above rival contentions, the point that falls for consideration is whether the impugned orders are liable to be revised by accepting the contentions of the petitioners. 9. So far as the first contention based on Section 39(3) CPC is concerned, the said provision reads as follows: 39. Transfer of decree. - (1)… (2)… (3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. (4)… 10. It is the contention of the learned counsel for the petitioner/judgment debtor that the value of the decree as on the date of making application for transfer is relevant and the same being exceeding the pecuniary jurisdiction of Rs.1,00,000/- the execution petition could not have been transferred to the Court of III Junior Civil Judge, City Civil Court, Hyderabad. I am unable to appreciate the said contention, as the suit originally filed was triable by the Court of Junior Civil Judge and execution thereof was also sought to be levied in the Court of Junior Civil Judge. The transfer of the decree for execution, therefore, is to the Court having the same pecuniary jurisdictional limit as that of the Court trying the suit. Secondly, under sub-clause (3) of Section 39 CPC above, the requirement is that the transferee Court should have jurisdiction to try the suit in which such decree was passed. Jurisdiction to try the suit is determined by the value of the suit for the purpose of pecuniary jurisdiction. As mentioned above, the institution and trial of the suit and the execution thereof after decree are all before the Junior Civil Judge, who, undoubtedly, has jurisdiction to try the suit. The valuation based upon the decree passed viz. the suit claim together with interest decreed thereon is, therefore, not relevant for the purpose of ascertaining pecuniary jurisdiction of the transferee Court and what is relevant is the value of the suit. Undoubtedly, that is also the criteria for determining the appellate jurisdiction against the suits under the Civil Courts Act, 1972. Therefore, what is material is the value of the suit for the purpose of deciding the pecuniary jurisdiction. The said contention, therefore, is liable to be rejected even on a reading of Section 39(3) CPC itself. Apart from the above, this contention is raised for the first time in this revision and even from the procedural point of view the same is not entertainable. The first contention is accordingly rejected. 11. So far as the second contention regarding deposit of sale consideration and poundage is concerned, admittedly, the petitioner/judgment debtor has not deposited any amount as required under Order 21 Rule 89 CPC. The provision mandates that any person claiming interest in the property sold may apply to have the sale set aside on his depositing the amount, as specified under clauses (a) & (b) of sub-clause (1) of Rule 89 CPC. The deposit of amount, therefore, is a pre-condition for making such application and offering of such deposit is part of the application itself. Without making the deposit, therefore, no such application in terms of Rule 89 CPC is entertainable. The petitioner, however, states that for similar application her purchaser had made deposit in terms of Rule 89 CPC and the same may be treated as on behalf of the petitioner. It is, however, noticed that neither any affidavit nor any memo on behalf of the said purchaser from the judgment debtor is filed or produced before the Court below. Whether the said purchaser agrees to treat her deposit as that of judgment debtor is, therefore, not known and even otherwise merely on assumption that the said purchaser has not sought withdrawal of the said amount after dismissal of her application E.A.No.638 of 2004, it cannot be presumed that the said deposit automatically enures to the benefit of judgment debtor on the basis of her request. The application of the judgment debtor E.A.No.906 of 2008 is, therefore, not in accordance with the mandatory provisions of Order 21 Rule 89 CPC. 12. The further aspect with respect to limitation is clearly settled by the decisions of the Supreme Court in DADI JAGANNADHAM’s case (4 supra) where the Supreme Court specifically held as follows: “15. A plain reading of O. 21, R. 92, C.P.C. shows that the Court could either dismiss an application or allow an application. Order 21, R. 89, C.P.C. prescribes no period either for making the application or for making the deposit. The Limitation Act also prescribes no period for making a deposit. However, Art. 127, Limitation Act prescribes a period within which an application to set aside a sale should be made. Earlier, this was 30 days, now it has been enhanced to 60 days. Unless there was a period prescribed for making a deposit, the time to make the deposit would be the same as that for making the application. This is so because if an application is made beyond the period of limitation, then a deposit made at that time or after that period would be of no use. 16. Normally, when the legislature wishes to prescribe a period for making a deposit, it does so by using words to the effect "No deposit shall be made after . . . days" or "deposit shall be made within . . . days" or "no application will be entertained unless a deposit is made within . . . days." Order 21, R. 92(2), C.P.C. does not use any such expressions. The relevant portion of O. 21, R. 92(2), C.P.C. reads as follows: "Where such application is made and allowed, and where, in the case of an application under R. 89, the deposit required by that rule is made within 30 days from the date of sale the Court shall make an order setting aside the sale." Thus O. 21, R. 92(2), C.P.C. is only taking away discretion of the Court to refuse to set aside the sale where an application is made and allowed and the deposit has been made within 30 days from date of sale. It is thus clear that O. 21, R. 92(2), C.P.C. is not prescribing any period of limitation within which a deposit has to be made.” The aforesaid would, therefore, make it clear that 60 days limitation prescribed under article 127 of the Limitation Act is for making of deposit as well as for making application. 13. It is not in dispute that the auction in the present case was held on 23.07.2004 whereas the present application is made by judgment debtor on 07.07.2008 i.e. after about four years. More importantly, in the earlier application of her purchaser E.A.No.638 of 2004, the judgment debtor/petitioner herein was a party respondent and she has never raised any objection with respect to the sale and only after her purchaser’s application stood dismissed finally by order of this Court dated 15.02.2008 dismissing CRP.No.351 of 2008 that she has come up with the present application, raising the self-same grounds and pleas. 14. The principles of res judicata or constructive res judicata as contended by the learned counsel for the auction purchaser, however, would not strictly and technically apply in the present case in view of the principle that for applying constructive res judicata there must be a conflict of interest between the defendants and that conflict is necessary to be resolved to give relief to the petitioner. These twin conditions are, therefore, not satisfied. However, the petitioner though a party respondent in earlier E.A.No.638 of 2004, has adopted a non-contentious attitude and allowed the earlier proceedings to attain finality whereunder the auction sale in question was upheld. If the petitioner was also aggrieved by the said auction sale, as contended in the present E.A.No.906 of 2008, she would have agitated the said aspect in the earlier EA itself. The conduct of the petitioner in not contesting the auction sale when she was party to the earlier proceedings clearly estops the petitioner from raising self-same contentions in the present proceedings and make it appear as if the present proceedings are continuation of E.A.No.638 of 2004. A similar situation was resolved by the Honourable Supreme Court in FERRO ALLOYS CORPN. LTD. v. UNION OF INDIA[5] Where the petitioner before the Supreme Court was held estopped from contesting against the order of the Central Government, which was confirmed in earlier proceedings, to which the petitioner was a party and had not contested the earlier proceedings. The relevant paras 34 to 36 are extracted hereunder: “34. So far as this point is concerned, we have given our anxious consideration to the rival contentions. We find that the appellant FACOR stood on the fence before this Court when the judgment was rendered in TISCO's case (1996 AIR SCW 3031) (supra). By the time this Court heard the aforesaid cases on 5-10-95 and reserved its judgment, FACOR had already got assessment of its need decided by the Sharma Committee as well as by the Central Government by its order dated 17th August, 1995. Not only that but subsequent thereto on 23rd August, 1995, FACOR itself had made an application for mining lease for 462.406 hectares presumably on the basis that its requirement was much more than that assessed by the Sharma Committee and accepted by the Central Government. If that is so, when it was already a party Respondent before this Court which took up for consideration on 5th October, 1995 the question whether Sharma Committee Report as accepted by the Central Government by its order dated 17th August, 1995 was correct or not, the stand adopted by the appellant FACOR before this Court assumes importance. 35. It discretely kept silent and invited this Court to accept the said decision of the Central Government as a whole. That is to say by 5th October, 1995 FACOR as a Respondent in the proceeding before this Court deliberately did not choose to challenge the said order on any permissible ground if it was aggrieved by the lower assessment of its need by the Committee as accepted by the Central Government. On the contrary, its stand before this Court by 5th October, 1995 was of necessity one of getting the said order wholly upheld. And that is exactly what this Court did in its judgment delivered later on 23rd July, 1996. It is also pertinent to note that in between FACOR had filed Writ Petition OJC No. 1474/96 on 19th February, 1996 before the Orissa High Court challenging the order of the Central Government dated 17th August, 1995. For reasons best known to it, FACOR did not think it fit to get the said writ petition transferred to this Court for decision. Instead, it never moved its writ petition for orders before the High Court even till date. This conduct of FACOR shows that before this Court it was interested in getting the order of the Central Government dated 17th August, 1995 wholly confirmed. It never raised any dispute inter se among the other Respondents who were the present contesting Respondents or even against the Central Government which was also a party to the proceedings before this Court. It kept mum on this aspect and invited this Court to wholly confirm the order of 17th August, 1995 and also successfully got it confirmed by this Court. It was, therefore, too late for FACOR to subsequently turn round and try to go behind the said order. Thus, on the principle of conscious waiver of its objections to the order dated 17th August, 1995 it must be held that FACOR gave up its grievance regarding assessment of its requirement of chrome ore as approved by the Sharma Committee and accepted by the Central Government. Its conduct showed that it was satisfied by the order of the Central Government dated 17th August, 1995 recommending grant of lease of appropriate extent of land for meeting the assessed need of the appellant for chrome ore for the coming 50 years. We, therefore, find considerable force in the submission of the learned Senior counsel for the contesting Respondents that FACOR by its own conduct had waived its dispute regarding the correct assessment of its need by the Committee and as confirmed by the Central Government by its order dated 17th August, 1995. It acquiesced in the said assessment. 36. Apart from the question of acquiescence, FACOR would also be liable to be non-suited on the ground of estoppel. As noted earlier, it did not get its pending writ petition OJC No. 1474/96 transferred for adjudication before this Court when the earlier proceeding wherein by October, 1995 Central Governments order of 17th August, 1995 was already considered was awaiting judgment of this Court. When FACOR, as a contesting Respondent in SLP filed by TISCO and IDCOL, had tried to support the order of Central Government dated 17th August, 1995 before this Court it definitely created an impression in the minds of the other contesting Respondents, including the State Government and the Central Government, that it was supporting the order of 17th August, 1995 in its entirety. These contesting Respondents, on account of the aforesaid conduct of FACOR changed their position and could legitimately presume that the appellant had no grievance against the relative assessment of the needs of other contesting parties. On that clear stance of FACOR arising out of its conduct before this Court, Respondents could legitimately proceed on the basis that FACOR was claiming mining lease in the light of assessment of its need as made by the expert committee and accepted by the Central Government and hence the balance land would be available to the rest of the contesting Respondents as per their assessed needs. It is because of the conduct of FACOR that the State Government relying on the said basis of the assessment of relative needs of the four claimants as upheld by this Court, passed the subsequent order dated 29th June, 1997. It is pertinent to note that in the present proceedings neither FACOR nor any of the other contesting Respondents/claimants have made any grievance regarding the slicing down to the extent of 50% of the requirement of four claimants including FACOR as effected by the State Government by its aforesaid order. Thus, the appellant not only acquiesced in the order of 17th August, 1995 but allowed the State Government to act on the same, on the basis that FACOR was satisfied by the assessment of its need by the Central Government and also being further satisfied in getting at least 50% of its assessed need acted upon by the State Government which can grant appropriate lease of land to that extent in the first instance. Therefore, the order of the State Government dated 29th June, 1997 must be held to have proceeded on the admitted stand taken not only by FACOR but also by the other claimants before this Court when it delivered its Judgment in TISCO's case (1996 AIR SCW 3031) (supra). Thus, because of non-contentious attitude adopted by FACOR before this Court in the proceedings culminating in the aforesaid judgment not only the other three rival claimants but also the Central and the State Governments changed their positions and acted upon the representation flowing from the non-contentious attitude adopted by the FACOR in connection with the order of Central Government dated 17th August, 1995. Not only the said order was supported by FACOR before this Court, but it became successful in getting it confirmed by this Court and thereafter the said decision was acted upon by all the contesting Respondents. Hence, it is too late for FACOR to turn round and try to get out of the order of this Court. Therefore, even on the principle of estoppel, FACOR must be held to be bound by the assessment of its need as approved by the expert committee and accepted by the Central Government and which assessment was got approved by FACOR itself as a supporting Respondent before this Court. FACOR cannot blow hot and cold in this connection. It cannot now submit to this Court differently from what it submitted in the past when this Court decided TISCO's case (1996 AIR SCW 3031) (supra) and got the assessment of its need approved by this Court. It cannot turn round and say that this Court should not have accepted the said assessment.” 15. The executing Court, therefore, was right in observing that the judgment debtor has leisurely waited till all proceedings initiated by her purchaser are dismissed and thereafter, has come up with the present petition and went a step further to hold that even if her purchaser consents to treat her deposits as enuring to the benefit of the judgment debtor, the present petition filed by the judgment debtor is barred by limitation. The lower appellate Court also concurred with the said finding of the executing Court and though it has held that the judgment debtor’s contentions are barred by res judicata but the same actually should have been held as barred by principles of estoppel by conduct. 16. This leaves out the last of the contentions of the learned counsel for the petitioner that very valuable property has been sold in entirety for satisfaction of the decree of about Rs.1,09,000/-. The contention, no doubt, is clearly sustainable under Order 21 Rule 64 CPC and three decisions cited by the learned counsel for the petitioner, undoubtedly, support the said contention that there cannot be an excess sale through the