J MALLA REDDY Vs. I SHANTHAMMA

JUDGEMENT

(1.) NO. 1448 of 2008 by the auction purchaser and CMA No. 200 of 2008 and CRP no. 5004 of 2008 by the decree holder, which are directed against the common order dated 6. 2. 2008 passed by the Principal District and Sessions Judge, Medak at Sangareddy in EA Nos. 23 and 24 of 2007 in EP No. 50 of 2002, are taken up for hearing together and disposed of by this common judgment.

(2.) IN the course of our judgment, the parties are referred to as arrayed in the court below, for the sake of convenience.

(3.) THE facts in nutshell giving rise to filing the present appeals and revision are as under: m/s. Maharastra Apex Corporation limited (hereinafter called decree-holder)filed EP No. 50 of 2002 against Irrigation engineering Company (India) Limited, ranigunj, Secunderabad represented by its joint Manager, Praveen Dawar; Rajkumar tandon and Smt. I. Shanthamma. All the three were shown as co-obligators for execution of award passed by Sri ASN habaar, Advocate, Arbitrator in AP No. 201 of 2000 dated 11. 8. 2001 wherein the arbitrator passed ex parte award for recovery of sum of Rs. 19,14,461/- as claimed by Maharastra Apex Corporation Limited with future interest on Rs. 12,98,000/- at 26% per annum from 16. 4. 2000 till payment and rs. 6,990/- being the costs of the proceedings against them personally, jointly and severally and the 4th defendant-co-obligant shall also pay the same by sale of her A- schedule immovable property, which is mortgaged as security for the loan, i. e. , agricultural land measuring Ac. 5. 07 gts in Sy. No. 327 situated at Kallakal Village, Medchal Taluk, Toopran mandal, Medak District, Andhra Pradesh. In the EP filed under Section 31 of the arbitration and Conciliation Act, 1996 by the decree-holder total extent of land ac. 18. 03 gts; in Sy. No. 326/e measuring ac. 5. 20 gts; in Sy. No. 327/a measuring ac. 5. 07 gts and in Sy. No. 328/a measuring ac. 7. 16 gts. , was sought to be sold but in the relief column they prayed for attachment of immovable property, as mentioned in schedule of JDR No. 4 i. e. , Smt. I. Shantamma, and sale of properties for due realization of the amount, in which sale notice was issued in 'vaartha' Telugu Daily newspaper dated 24. 4. 2006 for proclamation of sale on 14. 6. 2006, on the said date auction was held for the entire land measuring ac. 18. 03 gts for a sum of Rs. 1,45,50,000/-; that the auction purchaser has not paid 1/ 4th of the bid amount on the date of auction nor deposited the balance amount within the stipulated period of 15 days as required under Order XXI Rules 84 and 85 CPC. Consequent to the default by the auction purchaser the executing Court by order dated 3. 11. 2006 ordered re-sale of an extent of Ac. 5. 07 gts covered by mortgage treating the auction held on 14. 6. 2006 as nullity and fresh publication was given in 'eenadu' telugu Daily on 7. 11. 2006 in respect of ac. 5. 07 gts in Sy. No. 326/a specifying the date of auction as 27. 11. 2006 and posted the E. As. on 5. 12. 2006 for report of Bailiff. Meanwhile, J. Malla Reddy-appellant in cma No. 1448 of 2008 filed EA No. 78 of 2006 seeking stay of proclamation dated 7. 11. 2006 contending that he had a preferential right to purchase Ac. 5. 07 gts on prorata basis in view of earlier auction and sought permission to pay 1/4th of the bid amount. The executing Court while staying the sale permitted the auction purchaser to deposit l/4th of the bid amount in respect of ac. 5. 07gts of land. On obtaining stay the auction purchaser deposited Rs. 11,10,000/-on 24. 11. 2006 requesting the executing court to issue sale certificate in respect of ac. 5. 07 gts. On 5. 12. 2006 the executing court called for the report of the Bailiff within whose jurisdiction the property is situated with regard to details of bid amount of the respective survey numbers which were auctioned on 14. 6. 2006. On receipt of above report, the learned executing Court directed the auction purchaser for filing of statement and deposit of balance amount and posted the matter to 21. 2. 2007. On the said date the decree holder filed a memo requesting the executing Court to fix the proportionate value of Ac. 5. 07 gts. at rs. 41,65,678/- and confirm the sale to an extent of Ac. 5. 07 gts. out of Ac. 18. 03 gts auctioned on 14. 6. 2006. On filing such memo by the decree-holder the executing Court directed the auction purchaser to deposit balance amount of Rs. 30,55,678/- by 21. 2. 2007. On 21. 2. 2007 the auction purchaser filed a memo seeking extension of time for deposit of 3/4th of the bid amount as directed to be deposited and the matter was posted to 15. 3. 2007, on the said date the auction purchaser deposited the balance 3/4th amount of Rs. 30,55,678/ -. On such deposit the matter was posted to 3. 4. 2007. Meanwhile, at the request of the auction purchaser, the EP was advanced from 3. 4. 2007 to 29. 3. 2007 and the sale was confirmed in favour of the auction purchaser in respect of Ac. 5. 07 gts by issuing a sale certificate. On confirming the sale, jdr No. 4 filed EA No. 23 of 2007 under order XXI Rule 90 CPC seeking to set aside the sale on the ground of fraud and cancel the sale certificate issued in favour of auction purchaser and EA No. 24 of 2007 was filed under Order XXI Rule 95 read with 151 CPC not to release the sale certificate and not to pass orders for delivery of possession of land pending EA No. 23 of 2007.