THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1907 OF 2011 Date of Judgment: 22.1.2014 Between:
S. Sanjeevudu …Petitioner And The State Bank of India (ADB), Nandikotkur and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1907 OF 2011 ORDER:
Heard both sides.
This revision petition is at the instance of the judgment debtor and he is aggrieved by the order of Executing Court restoring the E.P.No. 70 of 2007 to its file.
It is not in dispute that the first respondent-decree holder filed O.S.No. 18 of 2005 before the Senior Civil Judge, Nandikotkur and it was decreed by a preliminary decree dated 1.2.2006 and final decree dated 23.10.2007. Thereafter the decree holder-bank filed EP No. 70 of 2007 bringing the properties of the judgment debtor to sale. It appears that the Court below directed the sale which was conducted on 19.8.2010 and the second respondent emerged as a highest bidder. It is, however, alleged that he failed to deposit the one fourth of the bid amount and on account of the said default, the Executing Court dismissed the E.P. for default on 19.8.2010. It is on this account, E.A.No. 167 of 2010 was filed by the decree holder for restoration of the E.P. The judgment debtor opposed the said application. However, under the impugned order, the Court below found that the dismissal of the E.P. for default was a mistake and at best the Court could have cancelled the sale, if the amount was not deposited by the auction purchaser. Accordingly the Court below directed restoration of the E.P. and its docket order dated 7.4.2011 shows that on restoration of the E.P. fresh proclamation of sale and further hearing was ordered by fixing the date of hearing for 8.6.2011. The proclamation was also directed to be published in Eenadu daily newspaper and the decree holder was directed to file valuation certificate. Aggrieved by the restoration of the E.P. the present revision petition is preferred.
While issuing notice on admission, by order dated 25.5.2011 this Court granted interim stay of all further proceedings subject to condition of the petitioner-judgment debtor depositing Rs.50,000/- to the credit of the E.P. The said order is said to have been complied with and since then the revision petition is coming up for hearing. On earlier occasion, the revision petition was dismissed for default and has since been restored.
Today the matter has been heard. The learned counsel for the petitioner-judgment debtor states that no notice was given to him in the execution proceedings before conducting of sale. Similarly the learned counsel for the second respondent-auction purchaser states that he has paid the entire bid amount within the time by depositing with the Executing Court, but it was not noticed, when it passed the order dismissing the E.P. for default.
Considering the facts and circumstances of the matter and the primary basis of the impugned order being to rectify the mistake earlier committed by the Executing Court in dismissing the E.P. for default, the Court below has rightly restored the E.P., I find no reasons to interfere with the said order.
So far as the grievance of the petitioner-judgment debtor that he has not been put to notice before the sale of property is concerned, it is found from the docket proceedings dated 7.4.2011 of the Court below that only sale proclamation has been ordered to be settled. Since further proceedings in E.P. have been stayed pending this revision, the Executing Court shall take up the settlement of sale proclamation afresh after issuing notice to the petitioner-judgment debtor by providing him opportunity to pay balance decretal amount and proceed further in the execution petition. The Executing Court shall also look into the grievance of the auction purchaser that he has deposited the entire amount, but the same was not noticed by the Executing Court earlier. After considering the aforesaid objections of the auction purchaser, the Executing Court is free to proceed further with the execution of the decree for realization of the amount in according with law. The decree holder shall be permitted to withdraw Rs.50,000/- deposited by the petitioner as per interim order of this Court and the decree holder shall give credit to that sum against the claim in E.P.
The revision petition is accordingly disposed of. Miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J Dt. 22.1.2014 KR