HARIJANA MUKEERANNA Vs. B THIMMOTHI

JUDGEMENT

(1.) The auction purchaser in execution sale is the revision petitioner herein. He is aggrieved by the action of executing Court in setting aside the auction sale under Order XXI Rule-89 C.P.C. at the instance of the 1st respondent herein who is a third party. The 2nd respondent who is the decree-holder brought the E.P. schedule property belonging to the respondents 3 and 4 who are judgment-debtors in execution of money decree against them. In the execution proceedings, the executing Court, after following the procedure prescribed by law, conducted auction sale in which the revision petitioner became the highest bidder and he complied with the deposit of the purchase money as per law. While so, the 1st respondent herein, claiming to be having right in the property sold in Court auction, filed the petition in the executing Court under Order XXI Rules 89, 90 and 91 C.P.C. for setting aside Court auction sale held on 17-01-2008. The rights or claims of the 1st respondent herein in the auctioned property are immaterial since an application under Rule-89 for setting aside the sale can be filed by any person claiming interest in the property. Even though the 1st respondent herein filed application under Rules 89, 90 and 91, the executing Court considered the application under Rule 89 only. Rule 91 cannot be invoked by any party as it is a provision for the auction purchaser for setting aside the sale in his favour. Rule 89(2) prohibits pursuing of two remedies, one under Rule 89 and the other under Rule 90 in the following terms:-

(2.) It has to be seen whether there is sufficient compliance of requirements under Rule 89 before the executing Court exercising powers of setting aside the Court auction sale there under. The petition was filed in the executing Court by the 1st respondent herein within 60 days of the Court auction sale. But along with the petition, the 1st respondent herein did not deposit the entire E.P. amount and 5% of purchase money. Along with the petition, the 1st respondent herein paid 50% of the E.P. amount and filed another petition therein for extension of time for deposit of balance of the amount. Total E.P. amount was Rs. 2,16,712/-. In the Court auction sale, the property was sold for Rs. 5,72,500/-, 5% thereof comes to Rs. 28,625/-. Rule 89 (1) contemplates the applicant to pay into the Court, 5% of the purchase money for payment to the purchaser and amount specified in the sale proclamation for recovery of which the sale was held, for payment of the same to the decree holder. It is now well settled that in view of the Mohan Lal v. Hari Prasad Yadav, 1994 4 SCC 177 of two judges Bench of the Supreme Court and also Dadi Jagannadham v. Jammulu Ramulu and others (2), 2001 7 SCC 71 of five Judges Bench of Supreme Court, application under Rule 89 can be filed and the amounts specified in Rule 89 (1) can be deposited within 60 days of the date of auction sale. Rule 92(2) was also amended to that effect by the amending Act 22 of 2002, which came into effect on 01-07-2002. The executing Court allowed application of the 1st respondent herein extending time for deposit of balance amount under Rule 89 (1) upto 15-06-2009. The total amount to be deposited by the 1st respondent herein under Rule 89(1)(a) and (b) is Rs. 2,16,712 + Rs. 28,625/- totalling Rs. 2,45,337/-. Along with the petition under Rule 89, the 1st respondent herein deposited only Rs. 1,08,356/- and subsequently deposited balance of Rs. 1,36,981/- by 15-06-2009.

(3.) Therefore, the question to be considered herein is whether amounts deposited by the 1st respondent/claimant are in accordance with Rules 89 and 92 CPC and whether the Courts below are justified in setting aside the Court auction sale under Rule 89.