Andhra Pradesh High Court – Amravati
Pandillapalli Venkata Ramana Reddy vs Kanupuru Sudhakar Reddy on 27 January, 2025
APHC010841422016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE TWENTY SEVENTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
CIVIL MISCELLANEOUS APPEAL NO: 17/2016
Between:
Pandillapalli Venkata Ramana Reddy ...APPELLANT
AND
Kanupuru Sudhakar Reddy and Others ...RESPONDENT(S)
FIRST APPEAL NO: 29/2008
Between:
Pandillapalli Venkata Ramana Reddy ...APPELLANT
AND
Kanupuru Sudhakar Reddy and ...RESPONDENT(S)
Others
Counsel for the Appellant:
1. V ROOPESH KUMAR REDDY
Counsel for the Respondent(S):
1. .
2. VENKATESWARLU SANISETTY
The Court made the following:
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
CIVIL MISCELLANEOUS APPEAL No.17 OF 2016
AND
APPEAL SUIT No.29 OF 2008
COMMON JUDGMENT:
–
CIVIL MISCELLANEOUS APPEAL No.17 OF 2016
This Civil Miscellaneous Appeal, is filed by the appellant challenging the
order and decreetal order, dated 29.12.2015 in E.A.No.88 of 2015 in E.P.No.7
of 2002 in O.S.No.143 of 1997 passed by the Principal District Judge, Nellore
[for short „the Executing Court‟].
2. The appellant herein is the Judgment Debtor and respondents 1 and
2 herein are the Decree Holders and 3rd respondent herein is the Auction
Purchaser in E.A.No.88 of 2015 in E.P.No.7 of 2002 in O.S.No.143 of 1997.
3. The appellant/Judgment Debtor filed E.A.No.88 of 2015 in E.P.No.7
of 2002 in O.S.No.143 of 1997 under Order XXI Rule 90 and under Sections
47 and 151 of the Code of Civil Procedure (for short “CPC“) for setting aside
the sale held on 10.10.2006 and for costs.
4. The brief averments in E.A.No.88 of 2015 in E.P.No.7 of 2002 in
O.S.No.143 of 1997, are as under:
Proclamation was not properly effected. No beat of tom-tom was made
in the vicinity, and the receipt was obtained without actually proclaiming by
beat of tom-tom. The market value of the schedule property prevailing as on
the date of sale was Rs.25,00,000/-, but the 3rd respondent/ auction-purchaser
in collusion with the respondents/decree holders and other bidders and with
ulterior motive of having the property did not allow the bid to go for a
reasonable price. As the petitioner was away from the State, he could not
know the date of sale and thus he was unable to secure highest bidders. The
publication, which was made in Janata Newspaper of Vijayawada, has no
circulation in Nellore town where the property is situated. Due to these
irregularities in conducting the proclamation of sale and sale, it is liable to be
set aside.
5. The 1st respondent/1st decree-holder filed counter denying all the
averments mentioned in the petition which was adopted by 2nd respondent/2nd
decree-holder and further contended as under: –
The Judgment-Debtor has filed the petition with the sole object of
delaying and prolonging the matter in order to prevent the decree-holders to
realize the decreetal amount, and the petition is devoid of merits, and it is
liable to be dismissed.
6. The 3rd respondent/auction-purchaser filed counter denying all the
averments mentioned in the petition and further contended as under: –
(i) The Judgment-debtor slept over the matter from the period of
issuance of sale notice under Order XXI Rule 66 of the CPC till completion of
sale process and, therefore, he is not entitled to the reliefs sought for in the
present application. This petition is filed with a malafide intention to prevent
the auction-purchaser to take delivery of possession of the property. The
petitioner has been abusing the process of the Court. The petitioner through
his Legal Representatives, unsuccessfully filed C.F.R.No.11253 of 2006 under
Order XXI Rule 58 of CPC claiming rights in the property, which was rejected
on 30.10.2006 by the Executing Court as not maintainable. He also filed
E.A.No.3 of 2008 for transfer of Execution Proceedings to some other Court,
making allegations against the Presiding Officer, and the same was dismissed
on 23.01.2008. The petitioner sought for adjournments by sending telegrams,
and by absenting himself for some adjournments, and by filing some petition
or the other, and could successfully dragon the proceedings from 2002 to
2006. The petitioner also filed E.A.No.40 of 2007 under Order XXI Rules 97,
98 and 101 of CPC contending that he is an agriculturist and the decree is not
executable, etc., and it was dismissed on merits. Against the said order of
dismissal, the petitioner preferred A.S.No.29 of 2008 before this Court and
obtained ad-interim stay in A.S.M.P.No.71 of 2008, but subsequently it was
vacated on filing of counter-affidavit by the auction-purchaser in A.S.M.P.
No.572 of 2008, dated 24.07.2008. Aggrieved of the same, the petitioner/
judgment-debtor preferred SLPs. (C) 29285 and 29286 which were also
dismissed by the Hon‟ble Apex Court by its order, dated 16.12.2008.
(ii) After vacation of stay by this Court, the auction-purchaser filed
E.A.No.27 of 2007 under Order XXI Rule 95 CPC for delivery of possession of
the E.P. schedule property, but the petitioner/Judgment-Debtor obstructed the
same, made false complaint to the Police, who registered a case against the
Court Amin who proceeded with the delivery warrant, which is pending
enquiry. The 3rd respondent/Auction-purchaser filed E.A.No.38 of 2007 under
Section 151 CPC seeking for police-aid.
(iii) The petitioner/Judgment-Debtor also filed E.A.No.27 of 2009 under
Order XXI Rule 54(1A), 66, 64, 90, 67, 66(2), 90(3) of CPC mentioning all the
provisions enshrined in the Code of Civil Procedure, for protracting the
proceedings, and the same was dismissed by the Executing Court. E.A.No.9
of 2011 was also filed under Order XXXIV Rule 5 of CPC and when it was
dismissed, he preferred C.R.P.No.1628 of 2012 and it was disposed of by
remitting back the matter to this Court for giving E.A. number in
C.F.R.No.14159 of 2006, which is numbered as E.A.No.88 of 2015.
(iv) The sale was conducted by the Court after lapse of four years, after
conducting the test of the property two times, and after filing of sale papers
and encumbrance certificate. After enquiry, the Court conducted the sale of
the property by following due procedure i.e., publication in Janata Newspaper.
The price mentioned by the Amin, on filing of petition by the
petitioner/Judgment-Debtor, was enhanced to Rs.8,05,000/-.
7. Based on the above pleadings, the Executing Court framed the
following points for consideration:
(1) Whether any material irregularities were committed at pre-sale stage
or at post-sale stage?
(2) Whether the judgment-debtor was subjected to any substantial
injury/loss due to alleged commission of any such irregularities?
(3) Whether the sale held on 10.10.2006 and confirmation of sale, dated
27.02.2007 are liable to be set aside?
(4) To what relief?
8. On behalf of both the parties, no evidence was adduced and no
documents were marked.
9. After hearing the arguments of both sides, the Executing Court
dismissed the application vide its order, dated 29.12.2015, against which the
present Civil Miscellaneous Appeal is preferred by the Judgment-Debtor in the
petition questioning the order and decreetal order passed by the Executing
Court.
APPEAL SUIT No.29 OF 2008
10. This Appeal Suit, is filed by the appellant challenging the order and
decreetal order, dated 24.12.2007 in E.A.No.40 of 2007 in E.P.No.7 of 2002 in
O.S.No.143 of 1997 passed by the Principal District Judge, Nellore.
11. The appellant herein is the Judgment Debtor and respondents 1 and
2 herein are the Decree Holders and 3rd respondent herein is the Auction
Purchaser in E.A.No.40 of 2007 in E.P.No.7 of 2002 in O.S.No.143 of 1997.
12. The appellant/Judgment-Debtor filed E.A.No.40 of 2007 in E.P.No.7
of 2002 in O.S.No.143 of 1997 praying for adjudication of the objections raised
by the petitioner about the execution of the decree and further sale
proceedings and the liability of the delivery of the property in E.P.No.7 of 2002
as per the sale held on 10.10.2006.
13. The brief averments in E.A.No.40 of 2007 in E.P.No.7 of 2002 in
O.S.No.143 of 1997, are as under:
At the time of passing of the decree, the Court did not consider the rate
of interest and granted compound interest which is not tenable and there is no
proper appreciation of the evidence and the petitioner is an agriculturist and
therefore, the decree is not executable. The petitioner claimed that the
property is a valuable property and it was sold for lesser price.
14. The 3rd respondent/auction-purchaser filed counter contending that
the petition is not maintainable and none of the allegations made by the
petitioner are valid and there can be no objection for delivery.
15. Based on the above pleadings, the Executing Court framed the
following point for consideration is:-
Whether the present application filed by the petitioner is
maintainable and whether the proceedings of delivery have to be
stayed?
16. On behalf of both sides, no evidence was adduced and no
documents were marked.
17. After hearing the arguments of both sides, the Executing Court
dismissed the application vide its order, dated 24.12.2007, against which the
present Appeal Suit is preferred by the Judgment-Debtor in the petition
questioning the order and decreetal order passed by the Executing Court.
18. Both the Civil Miscellaneous Appeal and the Appeal Suit are filed by
the Judgment-Debtor in E.P.No.7 of 2002. Both parties will be referred to as
they are arrayed before the Executing Court and a common judgment is being
pronounced in both these appeals.
19. Heard Sri P.S.P. Suresh Kumar, learned counsel, representing Sri
V. Rupesh Kumar Reddy, learned counsel for the appellant and heard Sri
Sanisetty Venkateswarlu, learned counsel for the respondents.
20. Learned counsel for the appellant in C.M.A.No.17 of 2016, would
contend that the Executing Court ought to have considered that the appellant
is the original owner of the subject property and the same cannot be executed
as there are various lapses and legal infirmities in the execution proceedings
initiated by the respondents/Decree-Holders. He would further contend that
the Executing Court ought to have considered that no notice was published in
the newspaper of the local area where the subject property is situated. He
would further contend that the notice was published in an unknown newspaper
namely Janatha, which paper is not having largest circulation much less better
circulation in entire city of Nellore. He would further contend that the
Executing Court absolutely failed to appreciate that the valuable rights of the
appellant will be lost by virtue of the sale of the property. He would further
contend that the Civil Miscellaneous Appeal may be allowed by setting aside
the orders passed in E.A.No.88 of 2015 in E.P.No.7 of 2002.
Per contra, learned counsel for the 3rd respondent/auction-purchaser,
would contend that on appreciation of the entire evidence on record, the
Executing Court rightly dismissed the application filed by the appellant herein
and there is no need to interfere with the finding given by the Executing Court
and the Civil Miscellaneous Appeal may be dismissed.
21. Learned counsel for the appellant in A.S.No.29 of 2008 would
contend that a preliminary decree followed by final decree in O.S.No.143 of
1997under the execution in E.P.No.7 of 2002 is illegal, nullity and void. He
would further contend that the Executing Court has no jurisdiction to grant
more than 6% per annum simple interest, as the appellant is an agriculturist.
He would further contend the order passed in E.A.No.40 of 2007 may be set
aside by allowing the appeal suit.
Per contra, learned counsel for the 3rd respondent/auction-purchaser,
would contend that on appreciation of the entire evidence on record, the
Executing Court rightly dismissed the application filed by the appellant herein
and there is no need to interfere with the finding given by the Executing Court
and the Appeal Suit may be dismissed.
22. Now in deciding the present both these appeals, the points that
arise for determination are as follows:
(1) Whether the Executing Court is justified in dismissing E.A.No.88 of
2015 in E.P.No.7 of 2002 in O.S.No.143 of 1997, on the file of
Principal District Judge, Nellore connected with Civil Miscellaneous
Appeal No.17 of 2016?
(2) Whether the Executing Court is justified in dismissing E.A.No.40 of
2007 in E.P.No.7 of 2002 in O.S.No.143 of 1997, on the file of
Principal District Judge, Nellore connected with Appeal Suit No.29
of 2008?
23. Point No.1:
Whether the Executing Court is justified in dismissing E.A.No.88 of 2015
in E.P.No.7 of 2002 in O.S.No.143 of 1997, on the file of Principal District
Judge, Nellore connected with Civil Miscellaneous Appeal No.17 of
2016?
The undisputed facts of both the parties are the suit in O.S.No.143 of
1997, filed by the respondents 1 and 2 herein based on the registered
mortgage deed said to have been executed in the year 1983. After full
pledged trial, on 25.11.1997 a preliminary decree of mortgage is passed in the
above said suit by the learned II Additional District Judge, Nellore (for short
“trial Court”). Later on, on 18.08.2000 a final decree of mortgage is also
passed and the preliminary decree and final decree have attained finality.
There is no dispute by either side that E.P.No.7 of 2002 is filed by the Decree-
Holders to execute the final decree passed by the trial Court and a personal
notice was served on the Judgment Debtor and after receipt of personal
notice, he appeared before the Executing Court and later on he engaged a
counsel and filed a counter and on hearing both sides, the objections raised
by the Judgment-Debtor in the counter are overruled by the Executing Court
during the course of enquiry under Section 66 of CPC. After publishing the
sale proclamation and publication in a newspaper, a sale was conducted on
10.10.2006 and subsequently the sale was confirmed and sale certificate was
also issued to the auction-purchaser.
24. The grounds urged by the appellant in C.M.A.No.17 of 2016 are as
follows:
(a) Proclamation was not properly effected and no beat of tom-tom was
made in and around the vicinity and publication was made in Janatha Daily
Newspaper which is not having good circulation in Nellore Town.
(b) The market value of the property is Rs.25,00,000/- but it was sold for
lesser price.
It was contended by the learned counsel for the appellant that the sale
proclamation was not properly effected and no beat of tom-tom was made on
vicinity and the property was sold for a meager amount of Rs.13,00,000/- and
odd and the publication was ordered in Janatha Daily Newspaper which is not
having good circulation in Nellore Town.
25. The undisputed facts are O.S.No.143 of 1997 was filed by one
Kanupuru Sudhakar Reddy and his mother Kanupuru Rajamma against one
Pandillapalli Venkata Ramana Reddy i.e., appellant herein for a recovery of
money on the foot of mortgage and the same was decreed on contest by both
parties and preliminary decree of mortgage was passed on 25.11.1997 and
final decree was also passed on 18.08.2000, therefore, there is no need to
issue Rule 54 notice in the Execution Petition. Moreover, the Execution
Petition No.7 of 2002 was filed by the decree-holder against the final decree
proceedings under Order XXIV, Rules 54 and 56 of CPC for sale of mortgage
property. As stated supra, the material on record reveals that in Execution
Proceedings the Executing Court issued Rule 66 notice to the Judgment-
Debtor and the Judgment-Debtor appeared personally before the Executing
Court and engaged a counsel and later on, he filed a counter and objections
raised by the Judgment-Debtor in the counter are overruled by the Executing
Court on hearing both sides and the schedule property was also tested by the
Field Assistant on 31.07.2006. As seen from the material on record sale
proclamation was issued in Form No.29 as contemplated under Order XXI
Rule 66of CPC by mentioning all the terms and conditions which are relevant
therein and the value of the Field Assistant and warrant amount was also
mentioned. Furthermore, the written endorsement made by the Field Assistant
coupled with mediators report goes to show a beat of tom-tom was made at
the schedule locality of Nellore Town, to that extent a receipt issued by the
person, who effected tom-tom, was also enclosed and the endorsement of the
Field Assistant along with mediators report clearly goes to show that the Field
Assistant visited the property on 23.09.2006 in the presence of mediators and
a copy of the notice was also affixed on the wall of Raghavendra Swamy
Temple at Nellore Town and tom-tom was also effected and another copies
were affixed in the Municipal Corporation Office and notice board of the Court
and required charges were also paid to the person who made beat of tom-
tom. Therefore, it is evident that the proclamation of sale was properly done
and a tom-tom was duly effected. The sale proclamation was affected on
23.09.2006. The sale was held on 10.10.2006. The time gap in between both
the proclamation of sale and the date of sale is 17 days. Therefore, the
contention raised by the Judgment-Debtor that there is no time gap of 15 days
in between the sale proclamation and the date of sale is not having any merit.
Therefore, the contention of the appellant that the proclamation was not
properly effected and no beat of tom-tom was made in the vicinity of the
petition schedule property is untrue and without any basis. The entire record
reveals that the proclamation of sale was properly effected and the beat of
tom-tom was also made in and around the vicinity of the E.P. schedule
property area and further copy of sale proclamation was also affixed on the
wall of Raghavendra Swamy Temple and Court notice board and also
Municipal Office at Nellore for the purpose of general public to participate in
the auction going to be held on 10.10.2006.
26. It is relevant to say that the publication of sale proclamation was
made in Janatha Daily Newspaper as ordered by the Court. In the said
proclamation of sale, all the required details were mentioned. The Executing
Court rightly held that the object of the said proclamation of sale is made for
information of intending purchasers and not of the Judgment-Debtor. It is the
contention of the appellant that the publication was made in Janatha
Newspaper and which paper is not having good circulation in Nellore area.
The learned counsel for the respondents would contend that the publication in
Janatha Newspaper is approved by the learned Principal District Judge,
Nellore and to that extent proceedings were also issued for the purpose of
publication of Court matter in the entire District of Nellore.
27. Learned counsel for the appellant placed a reliance of Patnam
Subbalakshmamma vs. Sunkugari Sreenivasa Reddy and another 1
wherein the composite High Court of Andhra Pradesh at Hyderabad held as
follows:
“Rule 67 of Order 21 C.P.C., requires that the proclamation shall
be made and published as far as possible in accordance with the
procedure prescribed under Rule 54(2) and that in addition thereto, the
proclamation shall be published in the Official Gazette or local
newspaper or in both, as may directed by the Court.
In the instant case, the publication was made in a newspaper,
known as „Andhra Charita‟, which does not have any publication worth its
name. Nandyal is a very developed Town and almost every prominent
newspaper is in wide circulation in it. Each Telugu newspaper has its
own district edition. No publication was made in those newspapers.
Added to this, the Court had chosen to issue publication, which does not1
2010 SCC OnLine AP 932
contain any estimate furnished by the petitioner. The Court did not verify
that even the estimate of Rs. 13,00,000/- ordered in its own proceedings
as against Rs. 25,00,000/-, furnished by the petitioner; was not
furnished. The net result is that there was a serious flaw and fatal defect
in the sale proclamation, at various stages. A sale effected in pursuance
of such a proclamation, cannot be sustained in law.”
In the aforesaid decision, the composite High Court of Andhra Pradesh
at Hyderabad held as follows:
“When once the District Judge recognizes the paper for the purpose of
publication of Court matters, it cannot be said that it has no wide
publication and in my view, the publication of proclamation of sale in
„Kurnool Nedu‟ did not result in substantial injury to the petitioner”.
Learned counsel for the respondents placed reliance of D. Kondaiah
vs. Guntha Rama Subbaiah2, wherein it was held as follows:
“A reading of the Order 21 Rule 67 sub-rule (2) makes it clear that
proclamation can be published in the Official Gazette or a local
Newspaper in addition to the publication following the procedure
prescribed under Order 21 Rule 54 sub-rule (2) for publication of
proclamation of sale. Therefore, the publication in the Newspaper cannot
be said to be mandatory. It is not disputed that sale proclamation was
published in accordance with the procedure prescribed under Order 21
Rule 54(2), CPC. Even otherwise in this case the requirement under
Order 21 Rule 67 sub-rule (2) is complied with. The finding of the learned
Dist. Munsif as well as the Sub-Judge is that the District Judge, Kurnool
recognized this paper „Kurnool Nedu‟ as one of the Newspapers where
Court publications are ordered and every day number of publications
relating to the sale of property and summons are published. Therefore,
the requirement of Order 21 Rule 67 sub-rule (2) is satisfied.
The learned Counsel for the petitioner relied upon the evidence of
P.W. 3 who stated that no News papers are being published in Nandyal2
(1997) 5 ALT 269
either weekly or daily. Kurnool is the nearest place to Nandyal where the
papers are being published and he admits that he has necessary
permission to publish the Newspaper and also recognition by the District
Court to publish the Court publications in his Newspaper and his paper is
mainly devoted to Court publications. It is no doubt true that in the chief-
examination he says that he sells his paper at Kurnool Bus-stand and
not in other places and there are no private sales. From the chief-
examination it cannot be held that „Kurnool Nedu‟ has no circulation in
Nandyal. When once the Dist. Judge recognizes the paper for the
purpose of publication of Court matters, it cannot be said that it has no
wide publication and in my view, the publication of proclamation of sale
in „Kurnool Nedu‟ did not result in substantial injury to the petitioner.”
In the case on hand, Janatha Newspaper was recognized by the
Principal District Judge, Nellore for the purpose of publication of Court matters
in the entire Nellore District, therefore, the publication of any proclamation of
sale in Janatha Newspaper did not result any substantial injury to the
appellant. As stated supra, sale proclamation copies were affixed on the wall
of Raghavendra Swamy Temple at Nellore and affixed on the notice board of
the Municipal Corporation Office, Nellore and also Court notice board and a
tom-tom was properly effected to know the general public about the auction
going to be conducted on 10.10.2006.
28. Another objection raised by the appellant is that the market value of
the property is Rs.25,00,000/- but it was sold on lesser price. Learned counsel
for the appellant would contend that the value of the execution petition
schedule property is Rs.25,00,000/-. As seen from the material on record in
the counter filed by the Judgment-Debtor there was a specific recital that the
schedule property was worth Rs.15,00,000/- but not Rs.25,00,000/-. The
judgment-debtor has not filed any oral or documentary evidence to
substantiate his contention that the schedule property is worth about
Rs.25,00,000/- or more than Rs.13,75,000/-. The value of the property
assessed by the Field Assistant of the Court on making enquires in the
locality, fixed the value of the property is Rs.8,05,000/-, the same is mentioned
in paper publication of proclamation of sale. Though the Judgment-Debtor has
contended in the counter that the subject matter of the property is
Rs.15,00,000/-, for the reasons best known to him, he has not filed any
documentary evidence to that extent. On considering the entire facts and
circumstances of the case, the Executing Court fixed the upset price at
Rs.9,00,000/-. Further the material on record reveals total 13 bidders have
participated in the auction and finally the bid was knocked down in favour of
3rd respondent/auction-purchaser at Rs.13,75,000/- which is very nearer to the
price of Rs.15,00,000/-. The material on record reveals that the auction was
knocked down in favour of highest bidder. It is evident that the Judgment-
Debtor is having much knowledge about the Court proceedings at each and
every stage in the case on hand and he personally appeared before the
Executing Court after receipt of notice and he engaged a counsel and also
filed a counter, but he has not raised any objection that the upset price fixed
by the Executing Court is very less as bid was knocked down for lesser price.
For the aforesaid reasons, there is no force in the contention of the
learned counsel for the appellant that the bid was knocked down for lesser
price i.e., Rs.13,75,000/-.
29. Learned counsel for the appellant place a reliance of K.B.
Hemchand vs. K.J. Shankar in C.M.A.No.2701 of 2013 and C.M.P.
No.13295 of 2017 wherein it was held as follows:
In fact, even in the judgment relied upon by the appellant in AIR 1968
SCC 86 -Hukumchand Vs. Bansilal and others, the Hon‟ble Supreme
Court has observed that the provisions of Order 34 Rule 5(1) gives an
opportunity to a judgment debtor in a mortgage decree for sale to deposit
the amount due under the mortgage decree at any time before the
confirmation of sale made in pursuance of the final decree. The learned
judge goes on to state that when such a deposit is made, the executing
Court has to accept the payment and make an order in favour of the
judgment debtor. The learned Judge has observed as follows in this
regard :-
“It is true that so long as his right to redeem subsists the mortgagor
may redeem the property. It is this principle which is recognized in Order 34
Rule 5 which provides that the mortgagor judgment-debtor can deposit the
amount due even after the final decree has been passed but his deposit
must be made at any time before confirmation of sale.”
Learned counsel for the appellant placed reliance of P.V.J.A.
Prabhakar vs. Lanka Venkata Ramana3.
Learned counsel for the appellant placed another reliance of U. Nilan
vs. Kannayyan (dead) through LRs. 4 wherein the Apex Court held as
follows:
“Order 34 Rule 5 provides the last chance to the mortgagor to save his
property from being passed on to the auction purchaser and avoid the
disturbance of his title ensuring, at the same time, that mortgage money
is paid to the person in whose favour the property had been mortgaged
by depositing the entire amount in the Court, including the amount,
where the property has been sold, contemplated by Sub-rule (2) of this
Rule. The whole step has to be taken before the confirmation of sale.”
Learned counsel for the appellant placed another reliance of Kharaitilal
vs. Raminder Kaur and others5 wherein the Apex Court held as follows:
“The above question is identical to the question framed by the Division
Bench of the High Court in this case. This Court, on a consideration of a
number of decisions, including the decision of this Court in Hukamchand
case1 laid down that if an appeal was pending against an order refusing
to set aside the sale, the confirmation of sale as also the issuance of
Sale Certificate would be in a nebulous state and, consequently, it would
be open to the judgment-debtor to invoke the provisions of Order 34
Rule 5 C.P.C. and make the necessary deposits to save his property3
1987 LawSuit(AP) 482
4
(1999) 8 Supreme Court Cases 511
5
(2000) 3 Supreme Court Cases 664
from being transferred to a third person or, may be, to the decree-holder,
in execution of the decree passed in the mortgage suit. It may be
mentioned that in U. Nilan case2, reliance was also placed upon the
decision of this Court in Maganlal v. Jaiswal Industries3, in which it was
held that the sale does not become absolute or irrevocable merely on
passing an order confirming the sale under Order 21 Rule 92, but it
would attain finality on the disposal of the appeal, if any, filed against an
order refusing to set aside the sale.”
Learned counsel for the appellant placed another reliance of Maganlal
vs. M/s.Jaiswal Industries, Neemach and others6 wherein the Apex Court
held as follows:
“In this view of the matter we are of the opinion that in case the
provisions of Order XXXIV, Rule 5 of the Code are held to be applicable
to the facts of the instant case appropriate relief can be granted there
under as the order of confirmation of the sale passed by the High Court
in favour of the first purchaser has not become absolute due to the
pendency of these appeals against that order nor has the right of
redemption of Maganlal yet extinguished.”
The ratio laid down in the aforesaid case laws is that a petition under
Order XXXIV Rule 5 of CPC could be moved at any time before confirmation
of sale. The fact remains in the present case on hand, the sale was held on
10.10.2006 and sale was confirmed on 27.02.2007 and sale certificate was
also issued by the Executing Court.
30. Learned counsel for the appellant would contend that the Judgment-
Debtor filed a petition vide E.A.No.9 of 2011 under Order XXXIV Rule 5 of
CPC. The material on record reveals that the said application is filed in the
year 2011 which was dismissed on merits subsequent to four years of
confirmation of sale and also issuance of sale certificate. Admittedly, the
6
(1989) 4 Supreme Court Cases 344
orders passed in E.A.No.9 of 2011 are not carried by way of a revision or by
way of an appeal by the appellant herein.
31. Learned counsel for the appellant placed reliance of Prem Kishore
& others vs. Brahm Prakash & others 7 wherein the Apex Court held as
follows:
“The general principle of res judicata under Section 11 of the CPC
contain rules of conclusiveness of judgment, but for res judicata to apply,
the matter directly and substantially in issue in the subsequent suit must
be the same matter which was directly and substantially in issue in the
former suit. Further, the suit should have been decided on merits and the
decision should have attained finality. Where the former suit is dismissed
by the trial court for want of jurisdiction, or for default of the plaintiff‟s
appearance, or on the ground of non-joinder or mis-joinder of parties or
multifariousness, or on the ground that the suit was badly framed, or on
the ground of a technical mistake, or for failure on the part of the plaintiff
to produce probate or letter of administration or succession certificate
when the same is required by law to entitle the plaintiff to a decree, or for
failure to furnish security for costs, or on the ground of
improper valuation, or for failure to pay additional court fee on a plaint
which was undervalued, or for want of cause of action, or on the ground
that it is premature and the dismissal is confirmed in appeal (if any), the
decision, not being on the merits, would not be res judicata in a
subsequent suit.”
The facts in the aforesaid case law are different to the instant case. In
the instant case after confirmation of sale and after issuance of sale certificate
in the year 2007, an application under Order XXXIV Rule 5 of CPC is filed by
the Judgment-Debtor vide E.P.No.9 of 2011 and the same was dismissed on
merits and subsequently the said orders are not carried out by way of a
revision or by way of an appeal by the appellant herein.
7
2023 LiveLaw (SC) 266
32. Learned counsel for the appellant placed reliance of Patnam
Subbalakshmamma vs. Sunkugari Sreenivasa Reddy and another 8
wherein the composite High Court of Andhra Pradesh at Hyderabad held as
follows:
“The record of the case on hand discloses that the petitioner furnished
the value of the property at Rs. 25,00,000/-. He filed the valuation
certificate issued by a Municipal Licence Surveyor, according to which,
the value of the property was shown at Rs. 13,00,000/-. However, the
executing Court negatived the contention of the petitioner as to value,
namely Rs. 25,00,000/-, through its order, dated 24.10.2007, and
mentioned it as Rs. 13,00,000/-. This itself is a clear violation of Rule
66(2) of Order 21 CPC. It is not as if the property must be sold only at
the estimate made by the judgment-debtor. The participants in the
auction would have their own estimate on the property and at the most
the values furnished by the parties, would provide guidance. Depending
upon the factors such as the location of the property, the competition at
the auction, the property may fetch a price, more than what is furnished
by the judgment-debtor. Rule 66 does in no way confer the power upon
the Court to adjudicate the accuracy of the values furnished by the
parties, for the property proposed to be sold.”
In the aforesaid case law, the Judgment-Debtor filed a market value
certificate and a petition was filed before conducting sale itself to adjourn the
sale proceedings. The facts and circumstances in the aforesaid case law are
different to the instant case.
33. Learned counsel for the appellant placed reliance of Valivela
Satyanarayana vs. Boyapati Balakishore 9 wherein the composite High
Court of Andhra Pradesh at Hyderabad held as follows:
“It must be noted that even at the time of the auction, no application of
any type has been filed stating that the amount shown in the8
2011 (3) ALD 619
9
1992 (1) Law Summary 167 AP
proclamation of sale is incorrect. Even the court raised the attachment
and allowed the judgment-debtors to sell the property in question by
private negotiations but the judgment-debtors could not succeed in their
attempts. When several opportunities have been given to the judgment-
debtors at different times, before auction they cannot raise an objection
with regard to the court sale. The objections raised clearly show that it is
yet another attempt to see that the sale will not take place at all. It is
true, as pointed out by the Supreme Court, that dilatory tactics played by
the judgment-debtor cannot be taken into account.”
In the case on hand, admittedly, sale notice was issued and the same
was personally served on the Judgment-Debtor and he appeared before the
Executing Court and later on he engaged a counsel and filed a counter before
the Executing Court and he participated in the enquiry conducted under Order
XXI Rule 66 and objections raised by the Judgment-Debtor are overruled by
the Executing Court. After filing sale papers and encumbrance certificate, the
Executing Court ordered sale proclamation and also publication and finally the
sale was held on 10.10.2006 after following prescribed procedure laid down in
the Code of Civil Procedure. When several opportunities were given to the
Judgment-Debtor, though he participated in the execution proceedings before
the Executing Court and also engaged a counsel, the Judgment-Debtor did
not raise any objection with regard to the Court sale and value fixed by the
Field Assistant of the Executing Court.
34. Learned counsel for the appellant place reliance of Desh Bandhu
Gupta vs. N.L. Anand & Rajinder Singh10 wherein the Apex Court held as
follows:
“Service of notice on judgment-debtor under Order 21 Rule 66(2), unless
waived by appearance or remained ex parte, is a fundamental step in the
procedure of the court in execution. Judgment- debtor should have an
opportunity to give his estimate of the property. Sub-rule (1) of Rule 66
enjoins the court that the details enumerated in sub-rule (2) shall be
10
(1994) 1 Supreme Court Cases 131
specified as fairly and accurately as possible. The duty to comply with it
arises only after service of the notice on the judgment-debtor unless he
voluntarily appears and is given opportunity in the settlement of the value
of the property.”
In the case on hand, as noticed supra, a personal notice was served on
Judgment-Debtor and he appeared before the Executing Court and later on he
engaged a counsel and filed a counter. Sufficient opportunities were given to
the Judgment-Debtor to raise his objection, but the fact remained he did not
raise any objection before conducting sale except saying in the counter that
the value of the property is Rs.15,00,000/-.
35. Learned counsel for the appellant place reliance of Mahakal
Automobiles and another vs. Kishan Swaroop Sharma11 wherein the Apex
Court held as follows:
“When a property is put up for auction to satisfy a decree of the Court, it
is mandatory for the Court executing the Decree, to comply with the
following stages before a property is sold in execution of a particular
decree:
(a) Attachment of the Immoveable Property:
(b) Proclamation of Sale by Public Auction;
(c) Sale by Public Auction
Each stage of the sale is governed by the provisions of the Code. For the
purposes of the present case, the relevant provisions are Order 21 Rule
54 and Order 21 Rule 66. At each stage of the execution of the decree,
when a property is sold, it is mandatory that notice shall be served upon
the person whose property is being sold in execution of the decree, and
any property which is sold, without notice to the person whose property
is being sold is a nullity, and all actions pursuant thereto are liable to be
struck down/quashed.”
11
(2008) 13 Supreme Court Cases 113
Admittedly, in the case on hand, a preliminary decree has been passed
on merits on 25.11.1997 and a final decree has been passed on merits on
18.08.2000, against which the Execution Petition proceedings are initiated by
the Decree-holders and after receipt of sale notice, the Judgment-Debtor
appeared before the Executing Court and later on, he engaged a counsel and
filed a counter and the property was also tested by the Field Assistant of the
Executing Court. As noticed supra, the E.P. schedule property was mortgaged
on 06.08.1883. A charge has been created after conducting enquiry as
prescribed in the Code of Civil Procedure. The Executing Court conducted
sale proceedings on 10.10.2006 after following due procedure as prescribed in
the Code of Civil Procedure. Therefore, the facts and circumstances in the
cited decisions are different to the instant case.
36. Learned counsel for the appellant place reliance of Balakrishnan
vs. Malaiyandi Konar12 wherein the Apex Court held as follows:
“The provision contains some significant words. They are “necessary to
satisfy the decree”. Use of the said expression clearly indicates the
legislative intent that no sale can be allowed beyond the decretal amount
mentioned in the sale proclamation. (See Takkaseela Pedda Subba
Reddi v Pujari Padmavathamma (AIR 1977 SC 1789). In all execution
proceedings, Court has to first decide whether it is necessary to bring the
entire property to sale or such portion thereof as may seem necessary to
satisfy the decree. If the property is large and the decree to be satisfied
is small the Court must bring only such portion of the property the
proceeds of which would be sufficient to satisfy the claim of the decree
holder. It is immaterial whether the property is one or several. Even if the
property is one, if a separate portion could be sold without violating any
provision of law only such portion of the property should be sold. This is
not just a discretion but an obligation imposed on the Court.”
Learned counsel for the appellant place reliance of Ambati Narasayya
vs. M. Subba Rao13 wherein the Apex Court held as follows:
12
AIR 2006 Supreme Court 1458
“The principal question that has been highlighted before us relates to the
legality of the sale of 10 acres of land without considering whether a
portion of the land could have been sold to satisfy the decree. It is said
that the total sum claimed in the execution was Rs.2,395.50. The
relevant provision which has a bearing on the question is Rule 64 Order
XXI of the Code of Civil Procedure and it reads as follows:
“Order XXI Rule 64: Power to order property attached to be
sold and proceeds to be paid to persons entitled–Any Court
executing a decree may order that any property attached by
it and liable to sale, or such portion thereof as may seem
necessary to satisfy the decree, shall be sold, and that the
proceeds of such sale, or a sufficient portion thereof, shall
be paid to the party entitled under the decree to receive the
same.”
It is of importance to note in all execution proceedings, the Court has to
first decide whether it is necessary to bring the entire attached property
to sale or such portion thereof as may seem necessary to satisfy the
decree. If the property is large and the decree to be satisfied is small, the
Court must bring only such portion of the property, the proceeds of which
would be sufficient to satisfy the claim of the decree holder. It is
immaterial whether the property is one or several. Even if the property is
one, if a separate portion could be sold without violating any provision of
law only such portion of the property should be sold. This, in our opinion,
is not just a discretion, but an obligation imposed on the Court. Care
must be taken to put only such portion of the property to sale the
consideration of which is sufficient to meet the claim in the execution
petition. The sale held without examining this aspect and not in
conformity with this requirement would be illegal and without
jurisdiction.”
Admittedly, in the case on hand, the schedule property is an old
terraced ground floor house and consisting only one item. Therefore, the facts
and circumstance in the cited decision are different to the instant case.
13
1989 LawSuit (SC) 483
37. In a case of Kotamreddy Balarami Reddy vs. Sri
Kondandaramawamy Temple, Buchireddypalem, Nellore and others 14 ,
held as follows:
“An overview of the various proceedings that have taken place in the
execution; the nature of applications filed by the appellant; the attitude
exhibited by him, from time to time, clearly demonstrates that he has
taken the executing Court and the respondents, for a ride. It is on
account of such attitudes exhibited by the parties, that the efficacy and
effectiveness of the Courts suffers a set back. It is true that the party is
entitled to take such pleas as are available to him, in law, and entitled to
be granted the relief. However, where the procedure and the concern
shown by the Court, towards its citizens, is misused, there is every
likelihood of people loosing faith in the system. The steps aimed at such
efforts, deserve to be curbed with iron hand. Nothing more is needed to
demonstrate such an attitude on the part of the appellant, than to refer to
the number and nature of applications filed by him. The executing Court
had meticulously considered each and every plea raised by the appellant
and passed a well-considered order. No interference is called for the
same.”
In the case on hand, a preliminary decree of mortgage has been passed
on 25.11.1997 on merits and a final decree has been passed on 18.08.2000
on merits and Execution Proceedings are initiated by the decree-holders in the
year 2002 and after receipt of ale notice, the Judgment-Debtor personally
appeared before the Executing Court and later on, he engaged a counsel and
filed a counter and the property was tested by the Field Assistant of the
Executing Court and subsequently sale papers and encumbrance certificate
were filed and an enquiry under Order XXI Rule 66 of CPC was conducted,
Judgment-Debtor participated in the enquiry and the objections raised by the
Judgment-Debtor in the counter are overruled by the Executing Court and sale
proclamation was ordered and sale proclamation was effected on 23.09.2006
14
2005 (1) ALD 406
and publication was also ordered by the Executing Court and the Decree-
holders complied the same and after following the requisite procedure as laid
down in the Code of Civil Procedure, the sale was conducted by the Executing
Court on 10.10.2006 and 13 bidders were participated in the auction and the
sale was knocked down in favour of auction purchaser for Rs.13,75,000/- and
the auction purchaser has deposited the amount subsequently on 30.10.2006.
The legal heirs of the Judgment-Debtor filed a petition in C.F.R.No.11253 of
2006 claiming right over the schedule property and the same was rejected by
the Executing Court since it is not maintainable. The material on record further
reveals that on 11.12.2006 a petition for setting aside the sale under Order
XXI Rule 90 of CPC has been filed by the Judgment-Debtor vide
C.F.No.14159 of 2006 and subsequently on 12.02.2007 the counsel for
Judgment-Debtor not pressed the said petition vide C.F.No.14159 of 2006,
since the Judgment-Debtor was not responding and the proceedings of the
trial Court reflect that C.F.No.14159 of 2006 filed by the Judgment-Debtor has
rejected as not pressed by the counsel for the petitioner and finally on
27.02.2007 sale was confirmed and auction-purchaser also deposited the
entire amount of R.13,75,000/- in those days in the year 2007 and sale
certificate was also issued. The material on record further reveals that another
application vide C.F.No.2393 of 2007 was filed to restore the not pressed
C.F.No.14159 of 2006, the same was rejected by the Executing Court by
passing a detailed order and legal heirs of the Judgment-Debtor also filed
C.F.R.No.11253 of 2006 under Order XXI Rule 58 of CPC claiming right over
the property and the same was dismissed, but no revision or appeal is filed
against the said order. Subsequently, the Judgment-Debtor also filed
E.A.No.40 of 2007 under Order XXI Rules 97, 98 and 101 of CPC since the
decree is not executable as he was an agriculturist. The same was dismissed
and against the said dismissal order in E.A.No.40 of 2007, the Judgment-
Debtor filed Civil Revision Petition No.2408 of 2007 before this Court and the
said Civil Revision Petition was disposed of and remitted back to the Court
below. The material on record further reveals that the auction-purchaser filed
E.A.No.27 of 2007 under Order XXI Rule 90 of CPC for delivery of possession
and Judgment-Debtor obstructed the delivery and another application is filed
by third party saying that he is a tenant under the alleged lease agreement,
the same was dismissed by the Executing Court and Judgment-Debtor also
filed a complaint to the police against Field Assistant of Court and the same
was registered against the Field Assistant of the Executing Court.
38. Rule 90 of Order XXI of CPC provides for setting aside the sale of
immovable properties in the execution, if the sale is vitiated by any irregularity
or fraud. Sub-rule (2) thereof mandates that the sale shall not be set aside on
the grounds referred to in sub-rule (1), unless the Court is satisfied that the
applicant sustained substantial injury, on the account of such irregularity or
fraud. Sub-rule (3) is to the effect that no application to set aside the sale
shall be entertained, on the ground if the applicant could have taken or
pleaded the same before the proclamation of sale was drawn. The Rule is
enacted to protect the interests of the Judgment-Debtors, where an
immovable property is brought to sale by playing fraud on the Curt, or where
the entire proceedings suffer from irregularity. It is never meant for the benefit
of a Judgment-Debtor, who wants to obstruct the proceedings, on the pretext
or the other. A reading of Sub-rule (3) discloses that application under sub-
rule (1) can be made only on such grounds, as were not available to the
Judgment-Debtor, when the property was brought to sale. It clearly disables a
Judgment-Debtor from seeking the relief of setting aside the sale, if he could
have raised the objection pleaded in the application filed under Rule 90 of
Order XXI of CPC before the sale was conducted. Even where the sale
proceeds are vitiated by any irregularity, or fraud, and if the Judgment-Debtor
was aware of it, before confirmation of sale, he cannot be permitted to reserve
those grounds to be pressed into service after the sale is confirmed, much
less if the same ground was pleaded earlier and rejected by the Court.
39. The material on record further reveals that the Judgment-Debtor has
not raised any objection before conducting the sale by the Executing Court
except saying in the counter that the value of the property is Rs.15,00,000/-.
The fact remains the Judgment-Debtor has not yet filed any documentary
proof to show that by the date of filing of the counter, the subject matter of
property is worth about Rs.15,00,000/-. The material on record reveals that
after proclamation of sale and also publication in the newspaper the sale was
held on 10.10.2006, around 13 bidders participated in the auction. Though
the Court has fixed the upset price as Rs.9,00,000/-, the sale was knocked
down for R.13,75,000/- in favour of auction purchaser. The fact remains that
the sale cannot be set aside on the simple ground because the price fetched
in the auction sale conducted by the Court, which is Rs.13,75,000/- which
amount is little bit of less than R.15,00,000/-. As stated supra, no documentary
evidence is filed by the Judgment-Debtor to show that the schedule property
was sold for lesser price resulting it causes substantial injury to the Judgment-
Debtor. Furthermore, I do not find any collusion in between the
bidders/auction-purchaser and decree-holders. In fact, no material
irregularities in proclamation of sale and publishing the same in the daily
newspaper were pointed out by the Judgment-Debtor, therefore, in the
absence of any material irregularities in proclamation of sale and conducting
the sale, the sale cannot be set aside.
40. The first objection raised by the learned counsel for the appellant is
that a notice under Order XXI Rule 54 of CPC is not yet issued in the
execution proceedings since the property is a mortgaged property and the
property ought to be held is a mortgaged property there is no need to issue
Rule 54 notice. As stated supra, preliminary decree of mortgage has been
passed on merits on 25.11.1997 and a final decree has been passed on
merits on 18.08.2000. Subsequently, the decree-holders instituted execution
proceedings under Order XXI Rule 66 of CPC. The fact remains that the
preliminary decree of mortgage and final decree of mortgage passed by the
trial Court are not set aside by the appellate Court. Therefore, there is no need
to issue a notice under Order XXI Rule 54 of CPC in execution proceedings, a
notice under Order XXI Rule 66 was ordered and the same was issued by way
of prescribed form provided in the Code of Civil Procedure and the appellant
herein received the notice and he personally appeared before the Executing
Court and later on he engaged a counsel and he filed a counter and he
participated in the enquiry under Order XXI Rule 66 of CPC, the Executing
Court overruled the objections raised by the Judgment-Debtor in the counter.
As noticed supra, the only contention taken by the Judgment-Debtor in the
counter is that the value of the property was Rs.15,00,000/-, but the
Judgment-Debtor has not taken any specific plea in the counter that value of
the property was Rs.25,00,000/-. Admittedly, no documentary proof is filed by
the Judgment-Debtor to show that the schedule property is worth about
Rs.15,00,000/-. As stated supra, the sale was conducted before the Executing
Court for the schedule property and bid was knocked down for Rs.13,75,000/-
in favour of auction-purchaser which amount is a little bit of less than
Rs.15,00,000/-.
41. Another objection taken by the appellant is that the time gap in
between publication of sale and date of sale is less than two weeks and
therefore the sale has to be set aside. As seen from the material on record,
the sale proclamation was ordered and the same was issued in a prescribed
form as mentioned in the Civil Procedure Code and further the Field Assistant
of the Executing Curt visited the E.P. schedule property and conducted
enquiry in the presence of the mediators and the property was also tested and
mediators report was also enclosed and a copy of notice was affixed on
Raghavendra Swamy Temple situated in the same street and another copy
was affixed in the Court notice board and another copy also was affixed in the
Municipal Corporation office for the sake of general public in respect of
proposed auction to be held by the Executing Court on 10.10.2006. The fact
remains that the proclamation of sale was properly done and tom-tom was
duly effected on 23.09.2006, the sale was conducted on 10.10.2006 by the
Executing Court, the time gap in between proclamation of sale and date of
sale is 17 days. Therefore, I am unable to accept the contention of the
learned counsel for the appellant/ Judgment-Debtor that the time gap in
between the proclamation of sale and date of sale is less than two weeks.
42. It was pleaded by the Judgment-Debtor that in the sale proclamation
the value given by the Judgment-Debtor is not at all mentioned in a
proclamation of sale. The object of proclamation of sale is meant for general
public to participate in the proposed auction going to be conducted by the
Executing Court but not for the sake of Judgment-Debtor. The objection of
proclamation of sale is inviting the bidders to participate in the auction after
arising the value of the property which is reasonable according to them as per
prevailing market value at the relevant time of auction. In the case on hand,
the value of the property was assessed by the Field Assistant of the Court on
making enquiry in the locality and determined at Rs.8,05,000/-, the same has
been mentioned in the sale proclamation and also publication. Admittedly, at
no point of time, the appellant has not raised any objection that the value fixed
by the Field Assistant is very low. Admittedly, no evidence either oral or
documentary is produced by the appellant to show that on the date of auction
the value of the property was Rs.15,00,000/-. The fact remains that the
Judgment-Debtor personally appeared before the Executing Court after
receipt of notice and later on, he engaged a counsel and contested the matter
by filing counter. During the course of enquiry, under Order XXI Rule 66 of
CPC, objections raised by the Judgment-Debtor in the counter are overruled
by the Executing Court. On considering the material on record the Executing
Court fixed upset price for Rs.9,00,000/- and 13 bidders participated in the
auction and the bid was knocked down in favour of auction purchaser at
Rs.13,75,000/- which is nearer to the price of Rs.15,00,000/-. The fact
remains that after conducting sale, the legal heirs of the Judgment-Debtor filed
an application on 30.10.2006 for claiming right over the property, the same
was rejected by the Executing Court. Subsequently, on 11.12.2006 a set aside
petition was filed for setting aside the sale vide C.F.No.14159 of 2006 but the
same was not pressed by the counsel for the Judgment-Debtor and later on
the sale was confirmed on 27.02.2007 and the sale certificate was also
issued. The material on record further reveals another C.F.No.2393 of 2007
was filed to restore the not pressed C.F.No.14159 of 2006 and the same was
dismissed by the Executing Court by passing orders on merits. The Judgment-
Debtor filed another E.A.No.40 of 2007 under Order XXI Rules 97, 98 and 101
of CPC by saying that the decree is not executable and the Executing Court
dismissed the said application. Against the dismissal order passed in
C.F.No.2393 of 2007, a Civil Revision Petition No.2408 of 2007 was filed
before this Court and the said Civil Revision Petition was disposed of and the
matter has been remitted back to the Court below. The Judgment-Debtor has
filed another application for seeking transfer of Execution Petition proceedings
vide E.A.No.3 of 2008 for transfer to some other Court, the same was
dismissed on merits. The material on record further reveals that a petition in
E.A.No.9 of 2011 was filed under Order XXXIV Rule 5 for redemption of
mortgage and that petition has dismissed by the Executing Court but no
appeal was filed against the orders passed by the Executing Court.
In the case on hand, the appellant has been unable to establish that he
had suffered substantial injury by reason of any irregularity or fraud. The main
objection taken by the appellant is that the property could have fetched higher
rate, but no material has been placed by the appellant in support of the
aforesaid contention. The appellant has never complained that upset price has
been wrongly fixed by the Executing Court. On appreciation of the entire
evidence on record, the Executing Court rightly held that the Judgment-Debtor
has not been able to establish that the material irregularities were committed,
at pre-sale stage or post-sale stage and due to the alleged material
irregularities, he sustained substantial injury. Therefore, I do not find any
illegality in the decree and order passed by the Executing Court in E.A.No.88
of 2015 in E.P.No.7 of 2002 in O.S.No.143 of 1997, on the file of the Principal
District Judge, Nellore.
Accordingly, point No.1 is answered.
43. Point No.2:
Whether the Executing Court is justified in dismissing E.A.No.40 of 2007
in E.P.No.7 of 2002 in O.S.No.143 of 1997, on the file of Principal District
Judge, Nellore connected with Appeal Suit No.29 of 2008?
It was contended by the appellant that both the preliminary decree and
final decree passed by the trial Court is illegal, nullity and avoid and the trial
Court has no jurisdiction to grant more than 6% per annum simple interest
since the appellant is being an agriculturist.
In the case on hand, a preliminary decree of mortgage has been passed
on 25.11.1997 on merits and a final decree has been passed on 18.08.2000
on merits and both the proceedings have attained finality and not yet set aside
by the appellate Court. The law is well settled the Executing Court cannot go
beyond the scope of the decree and Executing Court is not supposed to re-
assess the facts raised in the suit stage. It was contended by the appellant
that the trial Court is not having jurisdiction to grant more than 6% per annum
interest, as the appellant being an agriculturist and took a loan for the purpose
of meeting marriage expenses of his daughter. In fact, the same plea has
been taken by the appellant before the trial Court and the trial Court on
considering the entire material evidence on record, a decree of mortgage was
passed and it attained finality, therefore, the same cannot be re-agitated in
Executing Court by the appellant. The material on record reveals that the
borrower borrowed money for marriage expenses of his daughter and also for
the purpose of their business and executed a registered mortgage deed and
borrowed money from the plaintiff. The fact remains that E.A.No.60 of 2007
was filed under Order XXI Rule 90 of CPC and the same was dismissed on
merits on 12.12.2007. The material on record further reveals that the
proclamation of sale was effected on 23.09.2006 by following the prescribed
procedure as contemplated in the Code of Civil Procedure. As stated supra,
the Executing Court on appreciation of the entire evidence on record, rightly
held that the Judgment-Debtor has not been able to establish that the material
irregularities were committed at pre-sale stage or post-sale stage and due to
the material irregularities, the appellant herein sustained a substantial injury.
On appreciation of the entire material evidence on record, the Executing Court
rightly dismissed E.A.No.40 of 2007, therefore, there is no merits to interfere
with the findings given by the Executing Court and the appeal is liable to be
dismissed.
44. In the result, the Civil Miscellaneous Appeal No.17 of 2016 and the
Appeal Suit No.29 of 2008 are dismissed. Considering the facts and
circumstances of the case, each party do bear their own costs in these
appeals.
As a sequel, miscellaneous petitions, if any, pending in the Appeals
shall stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 27 .01.2025
PGR
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