It is seen from the aforementioned provisions that O.21 contains a scheme. First it provides for payment of decree money in the Court or outside the Court and a certification to be made by the decree-holder that the decree is fully satisfied and the Court records the same. R. 10 provides for execution of the decree by making the necessary applications to the Court for attachment and sale. Even after the sale proclamation, the judgment-debtor is given an opportunity to get the sale adjourned or stopped under R. 69(1). Till the property is ordered to be sold under R. 82 there are only two persons in the picture, the judgment-debtor and the decree-holder subject to the claims of ownership by third parties. Even after an order for sale is made, the judgment-debtor can get the postponement of the sale to raise the decree amount. Thus, up to R.83 the judgment-debtor has several opportunities to pay the decree amount and get the sale stopped. But when once the property is sold a third party enters into the picture viz., the auction purchaser. He has to deposit 25% of the purchase money immediately after he is declared as the purchaser and he shall pay the balance of purchase amount within 15 days from the date of sale. It is true that until the sale is confirmed, under R. 92 the auction purchaser does not acquire absolute rights. Under R. 89 any person interested in the property including the judgment-debtor can deposit the amount and apply to the Court for setting aside the sale and the Court can set aside the sale on payment of the amount contemplated under this Section. Under R.90 on the ground of any irregularity or fraud any person interested including the judgment-debtor or the auction purchaser or the decree-holder can file an application to set aside the sale on the ground of irregularity or fraud and subject to the conditions mentioned therein. Under R. 91 the purchaser can have the sale set aside if he proves that the judgment-debtor has no saleable interest. In our opinion, no sale once held can be set aside except under the provisions of Rr.89, 90 and 91 and the Court has no discretion except to confirm the sale as expressly stated in tl. 92. The object of Rr. 89, 90 and 91 is to see that the interest of the auction purchaser is also safeguarded and that is why R. 89(1) contemplates payment to the purchaser of a sum equal to 5% of the purchase money to mitigate the loss caused to him. Under sub-r. (3) of R. 90 no sale can be set aside on any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. These are the provisions which are intended to safeguard the interests of the judgment-debtor as well as the auction purchaser. The rights of the auction purchaser may be inchoate or limited and may not be absolute till the sale is confimed. But they are only subject to the provisions contained in Rr. 89, 90 and 91. Though no period of limitation is prescribed under 0. 21 R. 2 for filing an application by the judgment-debtor for recording full satisfaction of the decree as a necessary corollary it follows that the said application can be filed only before the properties are brought to sale. It is true that 90 days is prescribed for filing an application under O.21, R.90 and no such express provision exists in 0.21, R. 2(2A). But 0.21 R.2(2A), cannot be read in isolation. It must be read along with other provisions. At the stage of sale, the interests of a third party namely, the auction purchaser intervene. Before the sale is ordered, the Rules provide for several opportunities for the judgment-debtor to pay the amount even after attachment and proclamation of sale. But when once the properties are sold the sale can be set aside only in the manner specifically provided for and by necessary implication it follows that an application under 0.21, R. 2(2A.) is not maintainable after the sale is conducted.
2. The judgment-debtor is the petitioner. The 1st respondent obtained a money decree in O.S.No. 133 of 1974 on 28-8-1974 against the petitioner. During the execution proceedings in E.P. No. 40 of 1975, the judgment-debtor made some payments. Substantial amount of the decree stood undischarged. The properties of the
judgment-debtor-peti-tibner were brought to sale and respondent No. 2 purchased the same for Rs. 14,000/-subject to a mortgage of Rs. 10,000/- with interest at Rs. 1-10 Ps. per month. Thejudg-ment-debtor filed E.A. No. 637 of 1977 under O. 21,R. 90, Civil Procedure Code for setting aside the sale and the same was dismissed on 29-10-1983 holding the sale as valid. The matter was carried in appeal in C.M.A. No. 72 of 1983 which was also dismissed. A further revision in C.R.P. No. 240 of 1985 to the High Court under S. 115 Civil Procedure Code met the same fate on 6-3-1985.
3. Then there is a second round of litigation. The sons of the judgment-debtor filed O.S. No. 28 of 1981 in the Court of the Subordinate Judge, Machilipatnam for partition, as indigent persons. The suit was dismissed after full-fledged trial. The matter was carried in appeal to the High Court in A.S. No. 1028 of 1988 and they sought for stay which was initially granted, but vacated later on 16-2-1989. A petition was also filed under S. 47 which was dismissed by the District Munsif, Machilipatnam. After all these proceedings, the judgment-debtor deposited an amount of Rs. 9,000/- on 24-1-1989 toward,s decree amount and filed E.A. No. 326 of 1988 out of which this revision arises for recording full satisfaction of the decree and to set aside the sale held on 30-12-1976. The trial Court dismissed the petition holding that no fraud is played by the decree-holder or the auction purchaser and the sale cannot be set aside.
4. The main contention advanced by Mr. S. Satyanarayana Prasad, the learned Counsel for the petitioner is that a petition under O.21, R. 2(2 A), can be filed at any time before the sale is confirmed since there is no period of limitation prescribed in this regard and full satisfaction can be recorded on payment of the decree amount by the judgment-debtor and consequently the sale gets automatically set aside.
5. When the case came up for hearing before one of us (Radhakrishna Rao, J.) sitting single, reliance was placed on a decision of a single Judge of this Court in Yella Venkateswara Rao v. Madireddi Satyavathi 1987 (2) ALT page 567 in support of the contention that full satisfaction can be recorded at any time before the sale is confirmed if it is shown that some fraud was played. Radhakrishna Rao, J., doubted the correctness of this decision and referred the question to a Division Bench.
6. The short question that arises for consideration is whether full satisfaction of the decree can be recorded at any stage and the sale can be set aside.
7. O.21 relates to a stage after passing of decrees and orders. It relates to execution. R. 1, of 0. 21 starts with payment of money under decree. It deals with the method and manner in which the amount decreed can be paid. R. 1 deals with deposit into Court and the procedure to be followed thereafter. R. 2, of O.21 deals with a situation where the decree amount is paid out of Court. It says that where money is paid to the satisfaction of the decree-holder, he shall certify such payment and the Court shall record the same. Under R. 2 the judgment-debtor also can inform the Court of payment or adjustment and apply to theCourt to issue a notice to the decree-holder why such payment should not be recorded as certified. R. 2(2A) of O. 21, provides that no payment shall be recorded at the instance of the judgment-debtor unless the payment is made in the manner provided in R. 1 or the payment is proved by documentary evidence or the payment or adjustment is admitted by the decree-holder. Sub-r. (3) of R. 2 mandates that no payment which has not been certified shall be recognised by the Court executing the decree.
8. It is thus seen that Rr. 1 and 2 deal with the payment or adjustment of money under decrees or Orders. From R. 10 the procedure relating to execution is prescribed i.e., the Court in which applications have to be made and the manner in which execution can be levied so on and so forth. For instance, R. 12 deals with application for attachment of moveable property not in the judgment-debtor's possession. R. 11A deals with arrest. R. 13 relates to applications for attachment of immoveable property and the particulars to be mentioned in the said application. R. 30 onwards relates to mode of execution depending upon the nature of the decrees. R. 41 deals with attachment of-property in respect of money decrees. Rule 69 directs that a sate shall be stopped before the last knock down in case the debts and costs are tendered to the Officer conducting the sale or proof is given to his satisfaction that the amount of such debt and costs have been paid into Court which ordered the sale. Under R. 82 every Court, other than a Court of Small Causes is authorised to order sates of immovable property in execution of the decrees. Under R. 83(1) the judgment-debtor can move the Court for postponement of the sale on the ground that the decree amount may be raised by mortgage or lease or private sale of such property or of any other immovable property belonging to him and the Court on being satisfied is empowered to postpone the sale of the propei ly comprised in the order for sale to enable the judgment-debtor to raise the amount. Under R. 83(2) the money payable under such mortgage, lease or sale shall be paid not to the judgment-debtor, but except in so far as a decree-holder is entitled to set off such money under the provisions of R. 72 into Court. Under S. 84 on every sale of immovable property, the purchaser shall deposit 25% on the amount of his purchase money to the Officer or other person conducting the sale and in default of such deposit the property shall forthwith be re-sold. R. 85 requires that the full amount of purchase money payable shall be paid by the purchaser into Court before the Court closes on the 15th day from the sale of the property. Rule 86 deals with the procedure in default of payment and Rule 87 deals with resale of the immovable property in default of payment. Under R. 89 which is very relevant for the purpose of deciding this case, even after the property is sold in execution of the decree any person claiming interest in theproperty may have the sale set aside on his depositing into Court a sum equal to 5% of the purchase money for payment to the purchaser and for payment to the decree-holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. Sub-r. (2) of R. 89 provides that where a person applies under R. 90 to set aside the sale he shall not unless he withdraws his application be entitled' to make or prosecute an application under this Rule. Under 0.21, R. 90 a sale can be set aside at the instance of a decree-holder or the auction purchaser or any other person whose interests are affected by the sale on the ground of material irregularity or fraud in publishing or conducting the sale and sub-r. (2) provides that no sale shall be set aside unless the applicant has sustained substantial injury by reason of such irregularity or fraud. Sub-r. (3) prescribes that no application to set aside a sale under this Rule shall be entertained on any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. R.9I provides that the purchaser can get the sale set aside on the ground that the judgment-debtor has no salable interest in the property sold. Under R.92 the Court is bound to confirm the sale where no application is made under R. 89, R. 90 or R.91 or where such application is made and disallowed and the sale shall become absolute.
9. It is seen from the aforementioned provisions that O.21 contains a scheme. First it provides for payment of decree money in the Court or outside the Court and a certification to be made by the decree-holder that the decree is fully satisfied and the Court records the same. R. 10 provides for execution of the decree by making the necessary applications to the Court for attachment and sale. Even after the sale proclamation, the judgment-debtor is given an opportunity to get the sale adjourned or stopped under R. 69(1). Till the property is ordered to be sold under R. 82 there are only two persons in the picture, the judgment-debtor and the decree-holder subject to the claims of ownership by third parties. Even after an order for sale is made, the judgment-debtor can get the postponement of the sale to raise the decree amount. Thus, up to R.83 the judgment-debtor has several opportunities to pay the decree amount and get the sale stopped. But when once the property is sold a third party enters into the picture viz., the auction purchaser. He has to deposit 25% of the purchase money immediately after he is declared as the purchaser and he shall pay the balance of purchase amount within 15 days from the date of sale. It is true that until the sale is confirmed, under R. 92 the auction purchaser does not acquire absolute rights. Under R. 89 any person interested in the property including the judgment-debtor can deposit the amount and apply to the Court for setting aside the sale and the Court can set aside the sale on payment of the amount contemplated under this Section. Under R.90 on the ground of any irregularity or fraud any person interested including the judgment-debtor or the auction purchaser or the decree-holder can file an application to set aside the sale on the ground of irregularity or fraud and subject to the conditions mentioned therein. Under R. 91 the purchaser can have the sale set aside if he proves that the judgment-debtor has no saleable interest. In our opinion, no sale once held can be set aside except under the provisions of Rr.89, 90 and 91 and the Court has no discretion except to confirm the sale as expressly stated in tl. 92. The object of Rr. 89, 90 and 91 is to see that the interest of the auction purchaser is also safeguarded and that is why R. 89(1) contemplates payment to the purchaser of a sum equal to 5% of the purchase money to mitigate the loss caused to him. Under sub-r. (3) of R. 90 no sale can be set aside on any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. These are the provisions which are intended to safeguard the interests of the judgment-debtor as well as the auction purchaser. The rights of the auction purchaser may be inchoate or limited and may not be absolute till the sale is confimed. But they are only subject to the provisions contained in Rr. 89, 90 and 91. Though no period of limitation is prescribed under 0. 21 R. 2 for filing an application by the judgment-debtor for recording full satisfaction of the decree as a necessary corollary it follows that the said application can be filed only before the properties are brought to sale. It is true that 90 days is prescribed for filing an application under O.21, R.90 and no such express provision exists in 0.21, R. 2(2A). But 0.21 R.2(2A), cannot be read in isolation. It must be read along with other provisions. At the stage of sale, the interests of a third party namely, the auction purchaser intervene. Before the sale is ordered, the Rules provide for several opportunities for the judgment-debtor to pay the amount even after attachment and proclamation of sale. But when once the properties are sold the sale can be set aside only in the manner specifically provided for and by necessary implication it follows that an application under 0.21, R. 2(2A.) is not maintainable after the sale is conducted.
10. In this connection, We may refer to a decision of the single Judge of this Court in Yella Venkateswara Rao v. Madireddi Satya-vathi 1987 (2) ALT page 567 in which it was held that in the absence of a period of limitation for filing an application under O.21, R. 2(2A), it may be filed at any time. But, however, the learned Judge cautioned that such an application can be allowed and the sale be set aside on proof of fraud or such conduct on the part of the decree-holder or the auction purchaser which is shocking to the conscience of the Court and that it is open to the Court to retrace its steps and undo the mischief done. With great respect, we are unable to agree with this reasoning. In fact, even the learned Counsel for the petitioner submitted that the later part of the reasoning of the learned Judge in so far as it relates to the proof of fraud and abhorred conduct on the part of the decree-holder or the auction purchaser or anybody at their instance cannot be supported. We are told that an appeal is preferred to the Supreme Court against this judgment and the same was suspended. When once the position under 0.21, R. 90, has been dismissed, the Court cannot once again consider the question of fraud or irregularities. Even in case of fraud, R. 90 envisages that the sale can be set aside only if it has caused substantial injury to the applicant. After the dismissal of a petition under R. 90, we find it impossible how the Court can get jurisdiction to go into the question of fraud or abhorred conduct. The provisions of O.21, R.90, C.P.C. would be frustrated if such contention is upheld. We are, therefore, of the view that the decision in Yella Venkateswara Rao v. Marireddi Satyavathi 1987 (2) ALT page 567. does not represent the correct legal position.
11. Even on merits, we may say that no fraud is proved. No conduct on the part of the decree-holder or the judgment-debtor shocking the conscience of the Court has been established. On the other hand, it is the judgment-debtor that is guilty of dilatory tactics driving the other party from pillar to post and having failed in all his attempts, he deposited the amount into Court in 1989. The suit is of 1974 and the decree is also of the same year and there are absolutely no lapses on the part of the decree-holder or the auction purchaser to set aside the sale.
11 A. In a nut-shell, our conclusions are as follows:--
(1) No sale can be set aside except under the provisions of O.21, Rr. 89, 90 and 91 C.P.C.
(2) By a necessary implication a petition under O.21, R.2(2A), for recording satisfaction of the decree is not maintainable after the sale had taken place even though the sale is not confirmed.
(3) The Court has no option, but to confirm the sale in case where no application is filed under O. 21, Rr. 89, 90 and 91 or if filed they have been dismissed.
12. For all the above reasons, the Civil Revision Petition is dismissed. No costs.
13. Petition dismissed.
Print Page
Andhra High Court
Kolloru Kantharao vs Tamana Narayana Murthy And ... on 31 January, 1990
Equivalent citations: AIR 1991 AP 24
1. This Civil Revision Petition raises an interesting question of law.2. The judgment-debtor is the petitioner. The 1st respondent obtained a money decree in O.S.No. 133 of 1974 on 28-8-1974 against the petitioner. During the execution proceedings in E.P. No. 40 of 1975, the judgment-debtor made some payments. Substantial amount of the decree stood undischarged. The properties of the
judgment-debtor-peti-tibner were brought to sale and respondent No. 2 purchased the same for Rs. 14,000/-subject to a mortgage of Rs. 10,000/- with interest at Rs. 1-10 Ps. per month. Thejudg-ment-debtor filed E.A. No. 637 of 1977 under O. 21,R. 90, Civil Procedure Code for setting aside the sale and the same was dismissed on 29-10-1983 holding the sale as valid. The matter was carried in appeal in C.M.A. No. 72 of 1983 which was also dismissed. A further revision in C.R.P. No. 240 of 1985 to the High Court under S. 115 Civil Procedure Code met the same fate on 6-3-1985.
3. Then there is a second round of litigation. The sons of the judgment-debtor filed O.S. No. 28 of 1981 in the Court of the Subordinate Judge, Machilipatnam for partition, as indigent persons. The suit was dismissed after full-fledged trial. The matter was carried in appeal to the High Court in A.S. No. 1028 of 1988 and they sought for stay which was initially granted, but vacated later on 16-2-1989. A petition was also filed under S. 47 which was dismissed by the District Munsif, Machilipatnam. After all these proceedings, the judgment-debtor deposited an amount of Rs. 9,000/- on 24-1-1989 toward,s decree amount and filed E.A. No. 326 of 1988 out of which this revision arises for recording full satisfaction of the decree and to set aside the sale held on 30-12-1976. The trial Court dismissed the petition holding that no fraud is played by the decree-holder or the auction purchaser and the sale cannot be set aside.
4. The main contention advanced by Mr. S. Satyanarayana Prasad, the learned Counsel for the petitioner is that a petition under O.21, R. 2(2 A), can be filed at any time before the sale is confirmed since there is no period of limitation prescribed in this regard and full satisfaction can be recorded on payment of the decree amount by the judgment-debtor and consequently the sale gets automatically set aside.
5. When the case came up for hearing before one of us (Radhakrishna Rao, J.) sitting single, reliance was placed on a decision of a single Judge of this Court in Yella Venkateswara Rao v. Madireddi Satyavathi 1987 (2) ALT page 567 in support of the contention that full satisfaction can be recorded at any time before the sale is confirmed if it is shown that some fraud was played. Radhakrishna Rao, J., doubted the correctness of this decision and referred the question to a Division Bench.
6. The short question that arises for consideration is whether full satisfaction of the decree can be recorded at any stage and the sale can be set aside.
7. O.21 relates to a stage after passing of decrees and orders. It relates to execution. R. 1, of 0. 21 starts with payment of money under decree. It deals with the method and manner in which the amount decreed can be paid. R. 1 deals with deposit into Court and the procedure to be followed thereafter. R. 2, of O.21 deals with a situation where the decree amount is paid out of Court. It says that where money is paid to the satisfaction of the decree-holder, he shall certify such payment and the Court shall record the same. Under R. 2 the judgment-debtor also can inform the Court of payment or adjustment and apply to theCourt to issue a notice to the decree-holder why such payment should not be recorded as certified. R. 2(2A) of O. 21, provides that no payment shall be recorded at the instance of the judgment-debtor unless the payment is made in the manner provided in R. 1 or the payment is proved by documentary evidence or the payment or adjustment is admitted by the decree-holder. Sub-r. (3) of R. 2 mandates that no payment which has not been certified shall be recognised by the Court executing the decree.
8. It is thus seen that Rr. 1 and 2 deal with the payment or adjustment of money under decrees or Orders. From R. 10 the procedure relating to execution is prescribed i.e., the Court in which applications have to be made and the manner in which execution can be levied so on and so forth. For instance, R. 12 deals with application for attachment of moveable property not in the judgment-debtor's possession. R. 11A deals with arrest. R. 13 relates to applications for attachment of immoveable property and the particulars to be mentioned in the said application. R. 30 onwards relates to mode of execution depending upon the nature of the decrees. R. 41 deals with attachment of-property in respect of money decrees. Rule 69 directs that a sate shall be stopped before the last knock down in case the debts and costs are tendered to the Officer conducting the sale or proof is given to his satisfaction that the amount of such debt and costs have been paid into Court which ordered the sale. Under R. 82 every Court, other than a Court of Small Causes is authorised to order sates of immovable property in execution of the decrees. Under R. 83(1) the judgment-debtor can move the Court for postponement of the sale on the ground that the decree amount may be raised by mortgage or lease or private sale of such property or of any other immovable property belonging to him and the Court on being satisfied is empowered to postpone the sale of the propei ly comprised in the order for sale to enable the judgment-debtor to raise the amount. Under R. 83(2) the money payable under such mortgage, lease or sale shall be paid not to the judgment-debtor, but except in so far as a decree-holder is entitled to set off such money under the provisions of R. 72 into Court. Under S. 84 on every sale of immovable property, the purchaser shall deposit 25% on the amount of his purchase money to the Officer or other person conducting the sale and in default of such deposit the property shall forthwith be re-sold. R. 85 requires that the full amount of purchase money payable shall be paid by the purchaser into Court before the Court closes on the 15th day from the sale of the property. Rule 86 deals with the procedure in default of payment and Rule 87 deals with resale of the immovable property in default of payment. Under R. 89 which is very relevant for the purpose of deciding this case, even after the property is sold in execution of the decree any person claiming interest in theproperty may have the sale set aside on his depositing into Court a sum equal to 5% of the purchase money for payment to the purchaser and for payment to the decree-holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. Sub-r. (2) of R. 89 provides that where a person applies under R. 90 to set aside the sale he shall not unless he withdraws his application be entitled' to make or prosecute an application under this Rule. Under 0.21, R. 90 a sale can be set aside at the instance of a decree-holder or the auction purchaser or any other person whose interests are affected by the sale on the ground of material irregularity or fraud in publishing or conducting the sale and sub-r. (2) provides that no sale shall be set aside unless the applicant has sustained substantial injury by reason of such irregularity or fraud. Sub-r. (3) prescribes that no application to set aside a sale under this Rule shall be entertained on any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. R.9I provides that the purchaser can get the sale set aside on the ground that the judgment-debtor has no salable interest in the property sold. Under R.92 the Court is bound to confirm the sale where no application is made under R. 89, R. 90 or R.91 or where such application is made and disallowed and the sale shall become absolute.
9. It is seen from the aforementioned provisions that O.21 contains a scheme. First it provides for payment of decree money in the Court or outside the Court and a certification to be made by the decree-holder that the decree is fully satisfied and the Court records the same. R. 10 provides for execution of the decree by making the necessary applications to the Court for attachment and sale. Even after the sale proclamation, the judgment-debtor is given an opportunity to get the sale adjourned or stopped under R. 69(1). Till the property is ordered to be sold under R. 82 there are only two persons in the picture, the judgment-debtor and the decree-holder subject to the claims of ownership by third parties. Even after an order for sale is made, the judgment-debtor can get the postponement of the sale to raise the decree amount. Thus, up to R.83 the judgment-debtor has several opportunities to pay the decree amount and get the sale stopped. But when once the property is sold a third party enters into the picture viz., the auction purchaser. He has to deposit 25% of the purchase money immediately after he is declared as the purchaser and he shall pay the balance of purchase amount within 15 days from the date of sale. It is true that until the sale is confirmed, under R. 92 the auction purchaser does not acquire absolute rights. Under R. 89 any person interested in the property including the judgment-debtor can deposit the amount and apply to the Court for setting aside the sale and the Court can set aside the sale on payment of the amount contemplated under this Section. Under R.90 on the ground of any irregularity or fraud any person interested including the judgment-debtor or the auction purchaser or the decree-holder can file an application to set aside the sale on the ground of irregularity or fraud and subject to the conditions mentioned therein. Under R. 91 the purchaser can have the sale set aside if he proves that the judgment-debtor has no saleable interest. In our opinion, no sale once held can be set aside except under the provisions of Rr.89, 90 and 91 and the Court has no discretion except to confirm the sale as expressly stated in tl. 92. The object of Rr. 89, 90 and 91 is to see that the interest of the auction purchaser is also safeguarded and that is why R. 89(1) contemplates payment to the purchaser of a sum equal to 5% of the purchase money to mitigate the loss caused to him. Under sub-r. (3) of R. 90 no sale can be set aside on any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. These are the provisions which are intended to safeguard the interests of the judgment-debtor as well as the auction purchaser. The rights of the auction purchaser may be inchoate or limited and may not be absolute till the sale is confimed. But they are only subject to the provisions contained in Rr. 89, 90 and 91. Though no period of limitation is prescribed under 0. 21 R. 2 for filing an application by the judgment-debtor for recording full satisfaction of the decree as a necessary corollary it follows that the said application can be filed only before the properties are brought to sale. It is true that 90 days is prescribed for filing an application under O.21, R.90 and no such express provision exists in 0.21, R. 2(2A). But 0.21 R.2(2A), cannot be read in isolation. It must be read along with other provisions. At the stage of sale, the interests of a third party namely, the auction purchaser intervene. Before the sale is ordered, the Rules provide for several opportunities for the judgment-debtor to pay the amount even after attachment and proclamation of sale. But when once the properties are sold the sale can be set aside only in the manner specifically provided for and by necessary implication it follows that an application under 0.21, R. 2(2A.) is not maintainable after the sale is conducted.
10. In this connection, We may refer to a decision of the single Judge of this Court in Yella Venkateswara Rao v. Madireddi Satya-vathi 1987 (2) ALT page 567 in which it was held that in the absence of a period of limitation for filing an application under O.21, R. 2(2A), it may be filed at any time. But, however, the learned Judge cautioned that such an application can be allowed and the sale be set aside on proof of fraud or such conduct on the part of the decree-holder or the auction purchaser which is shocking to the conscience of the Court and that it is open to the Court to retrace its steps and undo the mischief done. With great respect, we are unable to agree with this reasoning. In fact, even the learned Counsel for the petitioner submitted that the later part of the reasoning of the learned Judge in so far as it relates to the proof of fraud and abhorred conduct on the part of the decree-holder or the auction purchaser or anybody at their instance cannot be supported. We are told that an appeal is preferred to the Supreme Court against this judgment and the same was suspended. When once the position under 0.21, R. 90, has been dismissed, the Court cannot once again consider the question of fraud or irregularities. Even in case of fraud, R. 90 envisages that the sale can be set aside only if it has caused substantial injury to the applicant. After the dismissal of a petition under R. 90, we find it impossible how the Court can get jurisdiction to go into the question of fraud or abhorred conduct. The provisions of O.21, R.90, C.P.C. would be frustrated if such contention is upheld. We are, therefore, of the view that the decision in Yella Venkateswara Rao v. Marireddi Satyavathi 1987 (2) ALT page 567. does not represent the correct legal position.
11. Even on merits, we may say that no fraud is proved. No conduct on the part of the decree-holder or the judgment-debtor shocking the conscience of the Court has been established. On the other hand, it is the judgment-debtor that is guilty of dilatory tactics driving the other party from pillar to post and having failed in all his attempts, he deposited the amount into Court in 1989. The suit is of 1974 and the decree is also of the same year and there are absolutely no lapses on the part of the decree-holder or the auction purchaser to set aside the sale.
11 A. In a nut-shell, our conclusions are as follows:--
(1) No sale can be set aside except under the provisions of O.21, Rr. 89, 90 and 91 C.P.C.
(2) By a necessary implication a petition under O.21, R.2(2A), for recording satisfaction of the decree is not maintainable after the sale had taken place even though the sale is not confirmed.
(3) The Court has no option, but to confirm the sale in case where no application is filed under O. 21, Rr. 89, 90 and 91 or if filed they have been dismissed.
12. For all the above reasons, the Civil Revision Petition is dismissed. No costs.
13. Petition dismissed.
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