K VENKATA SUBBAIAH Vs. G BRAHMAM REDDY

JUDGEMENT

(1.) The question that arises in this revision petition is whether petition under Section 47 of the Code of Civil Procedure lies to set aside an auction which was held and confirmed in execution of a decree in the absence of any application under Order 21 Rule 89 of the Code of Civil Procedure. The petitioner decree holder was the highest bidder in the auction of the property held on 11-7-1988 in execution of decree dated 3-3-1987 in O.S.No. 361 of 1986 on the file of Principal District Munsif, Proddutur, obtained against first respondent-judgment debtor and his elder brother in respect of certain transactions carried on for the benefit of joint family of first and second respondents. The first respondent judgment debtor filed E.A.No. 572 of 1989 on 7-11-1989, under Section 47 of the Code of Civil Procedure to set aside the sale which was confirmed on 26-9-1988 on the ground that property is not joint family property but belongs to the first respondent and his father-in-law. The lower Court overruling the objection of the decree holder that the judgment debtor having not filed any petition under Order 21 Rule 89 cannot file this petition under Section 47 to set aside the sale, held on merits that the property is not joint family property of the respondents and accordingly allowed the E.A. Challenging this order, the decree holder has preferred this revision petition.

(2.) Sri R.V. Nagabhushana Rao, learned counsel for the petitioner, submits that the petition filed under Section 47 is not maintainable since neither claim petition under Order 21 Rule 58 nor petition to set aside the sale under Order 21 Rule 89 was filed. In support of his contention, he relies on a decision of the Supreme Court in Ganpat Singh vs. Kailash Shankar. He submits that as sale was confirmed, the question of setting aside the same does not arise. On the other hand, Sri M.N. Narasimha Reddy, learned Counsel for the respondents relies on decision of the Supreme Court in Ramanna vs. Nallaparaju and a decision of the Himachal Pradesh High Court in Jaunda Ram vs. Dola Ram.

(3.) Order 21 Rule 89 enables any person claiming interest in the property sought to be sold in execution, to file application to set aside the sale while under Order 21 Rule 90, decree holder or purchaser or any other person entitled to a share in the distribution of assets may apply to the Court to set aside the sale on the ground of any material irregularity or fraud in publishing or conducting it. Section 47 of the Code of Civil Procedure reads as follows: