RAMACHANDRA RAO D Vs. P BULLAIAH

JUDGEMENT

(1.) The judgment and decretal order in CMA. No. 190/1990 on the file of I Additional Subordinate Judge, Vijayawada, dated 15-6-1992 setting aside the order dated 20-11-1990 in E.A. No. 1478/1990 on the file of I Additional District Munsif, Vijayawada, who dismissed the petition for setting aside the sale under Order XXI Rule 90 read with Section 151 of the Code of Civil Procedure, is challenged in this revision petition.

(2.) The facts giving rise to this revision petition in brief are: That the decree holder/respondent No.2 herein obtained a decree against judgment debtor/respondent No.1 herein and the property was sold in execution of the said decree. The revision petitioner herein is the auction purchaser. Respondent No.l filed E.A. No. 1478/1990 seeking setting aside of the said sale held on 29-8-1990 under Order XXI Rule 90 read with Sec.151 of the Code of Civil Procedure. That petition was dismissed for default by the learned Munsif on 20-11-1990. Thereupon respondent No. 1 filed a restoration petition in the same Court and also preferred C.M.A. No.190/1990 in the Court of I Additional Subordinate Judge, Vijayawada. On a consideration of the contentions raised by both sides, the learned I Additional Subordinate Judge, Vijayawada, allowed theappeal and set aside thedismissal order in E.A.No.1478/1990 and accordingly E.A.No.1478/1990 has been restored to file. The auction purchaser carried the matter in revision to this Court.

(3.) Mr. Ramanarayana, learned Counsel for the revision petitioner/auction purchaser contended that although respondent No.l is entitled for two remedies viz., (1) to file restoration petition in the Executing Court and (2) to prefer C.M.A., to the appellate Court, he has to exercise the option and adopt only one remedy, whereas in this case he has adopted both the remedies and that has resulted in conflicting judgments. He asserted that the learned I Additional District Munsif had dismissed the restoration petition also on merits and that order has become final. He, therefore, contended that the impugned order in this revision petition will have to be set aside so as to fall in line with the order which has already become final. On the other hand Mr. Adinarayana Rao, learned Counsel for respondent No. 1 contended that this is only an order of remand and it has been held that opportunity should be given to both the parties before passing any order. He, therefore, urged that an opportunity may be given to respondent No. 1 by maintaining the impugned order. As regards the assertion of Mr. Ramanarayana that the learned I Additional District Munsif dismissed the restoration petition on merits he stated that he has no instructions in that regard and that he would verify the same.