YANAMANDALA RAMA RAO Vs. GANTA RATNAVATHI

JUDGEMENT

(1.) The learned Counsel representing the appellants and Sri M.V. Suresh, the learned Counsel representing the respondents.

(2.) The petitioners/judgment debtors/ defendants in E.A. No.1010 of 2001 in E.P.33 of 2000 in O.S.26 of 1999 on the file of the Additional Senior Civil Judge, Rajahmundry are the appellants and the decree holder-plaintiff is the 1st respondent and the auction purchaser is the 2nd respondent in the present appeal. The appellants had filed the present C.M.A. as against an order made in the aforesaid proceedings by the Additional Senior Civil Judge, Rajahmundry on an application filed by them under Order 21 Rule 90 read with Section 151 C.P.C., to set aside the sale of the E.P. schedule property held on 18-9-2002. The 1st respondent-decree holder obtained a mortgage decree against the appellants in O.S.26 of 1999 on the file of the Additional Senior Civil Judge, Rajahmundry and had brought the said property to sale in E.P.33 of 2000 and the sale was held on 18-9-2002, which was knocked down in favour of the 2nd respondent-auction purchaser. No doubt, several grounds had been raised stating that the Court auction sale is vitiated and is liable to be set aside. Before the executing Court P.W.I and P.W.2 were examined, likewise R.W.I to R.W.3 were examined and ultimately the said E.A.No.1010 of 2001 in E.P.No.33 of 2000 in O.S.No.26 of 1999 on the file of Additional Senior Civil Judge, Rajahmundry was dismissed. Aggrieved by the same the present C.M.A. is filed. CMP No.407 of 2003 is filed in the present CMA praying for permission to deposit the entire decretal amount, interest and costs within a reasonable time. It is pertinent to note that such offer was not made before the executing Court, but however the appellants had moved such an applicatiori before this Court in the present C.M.A.

(3.) Sri Sudhakar, the learned Counsel placing strong reliance on Kharaiti Lai v. Raminder Kaur, 2000 AIR SCW 934, and also the judgment of this Court dated 6-9-2002 made in A.A.O.No.3196 of 2001 had contended that since it is a Court auction-sale of mortgage property, even in an appeal, the judgment debtor is entitled to deposit the whole of the decretal amount during the pendency of the appeal and in such a case the auction sale does not stand confirmed and the same can be set aside. The learned Counsel also submitted that in the facts and circumstances of the case granting six months time to make such deposit will be just and reasonable.