V SUBBARMMA Vs. KONIKI CHENGAMA NAIDU

JUDGEMENT

(1.) The judgment-debtors in EP No.334 of 1990 have filed this revision petition challenging the order in EA No.246 of 1994 on the file of First Additional District Munsif, Tirupati, dated 10-4-1996 on the ground that though the EP schedule property has been sold in execution of the decree, the sale was confirmed and the sale certificate was issued and full satisfaction of the decree was recorded, the lower Court erroneously held that the decree-holder was entitled to recover the E.P. amount.

(2.) The facts and circumstances leading to this revision petition in brief are :The respondent - decree-holder No.1 obtained a decree on 7-9-1989 against late V. Srinivasulu Naidu, husband of revision petitioner No. 1 and father of other revision petitioners and subsequently, he filed EP No.334 of 1990 for recovery of the amount. An extent of Ac. 0.05 cents in S.No.142/6 belonging to him was brought to sale for a sum of Rs.9,000.00 and the same was knocked down in favour of the respondent - decree-holder No.1. The said sale has been confirmed and sale certificate was also issued and then respondent No. 1 filed EA No.636 of 1993 for taking delivery of possession of the said property. When the Amin went to the land one Venkatarama Naidu filed a petition stating that he had already purchased the said property on 17-1-1984 from late V. Srinivasulu Naidu. The respondents had no knowledge of the above transaction as the same did not find place in the encumbrance certificate which was obtained by them before seeking sale of the said property. The revision-petitioners paid the balance of the decree amount over and above the amount realised from the Court auction, and the respondents filed full satisfaction memo under a bona fide belief that the auction was knocked down in their favour. Thus, the revision-petitioners intentionally suppressed the above fact and allowed the sale to go on. The decree is, therefore, not fully satisfied and hence the respondents are entitled to the balance amount of Rs.9,000.00 with interest at 6% till the date of realisation alongwith poundage and sale certificate fee of Rs.450.00.

(3.) The revision petitioner No.2 filed a counter while the other revision-petitioners filed memo admitting that a decree was obtained by the respondents against Srinivasulu Naidu on 7-9-1989, that EP was filed against the revision petitioners who succeeded to the estate of late Srinivasulu Naidu, that an extent of Ac. 0.05 cents in S.No. 142/6 was brought to sale and Rs.9,000.00 was realised from the Court auction which was knocked down in favour of the respondent No.1 and after the sale the revision-petitioners have paid the balance of the decretal amount and thereafter the respondent also filed full satisfaction memo. The revision-petitioners denied the remaining allegations that they suppressed that the property was sold by late Srinivasulu Naidu to Venkatarama Naidu and on the other hand, it is asserted that their father did not sell the said land to Venkatarama Naidu and that it is a vacant site and it is not in possession of Venkatarama Naidu. It is further stated that the petition under Section 47 CPC is not maintainable since the sale was confirmed and full satisfaction of decree was recorded and the appropriate provision for setting aside a sale is Order 21 Rule 91 of CPC and that the same should have been filed within thirty days from the date of sale under Article 127 of the Limitation Act.