Andhra Pradesh High Court - Amravati
K.Sarala vs Sk.Habeeba on 2 February, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
IN THE HIGH COURT OF ANDHRA PRADESH::AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.1457 of 2023
Between:-
Smt. K. Sarala
....Petitioner.
And
Smt. Sk.Habeeba
.... Respondents
Counsel for the Petitioner : M/s. G. Neelothpal
Counsel for the Respondent : Mr.M.Ravindra Babu
ORDER:
This Civil Revision Petition is filed against the order dated 27.03.2023 in E.A.No.214 of 2022 in E.P.No.341 of 2017 in O.S.No.166 of 2014, on the file of the Court of the 6th Additional District Judge, Nellore.
2) The petitioner herein is the Judgment Debtor. The respondent herein filed O.S.No.166 of 2014 for an amount of Rs.10,00,000/- and obtained a preliminary decree dated 30.06.2016 for a sum of Rs.14,95,997/- with costs and future interest and in default to apply for Final Decree for sale of mortgaged property. Subsequently, Final decree was passed on 31.10.2017 for sale of mortgaged property, which was 2 conducted on 16.12.2022. Seeking to set aside the sale, the petitioner/JDr., filed the E.A.No.214 of 2022 and the same was dismissed by an order dated 27.03.2023, against which the present Civil Revision Petition has been preferred.
3) Learned counsel for the petitioner, inter alia, contends that the order of the learned District Judge in dismissing the application to set aside the sale is not tenable. He submits that the learned District Judge failed to appreciate the contention of the petitioner that the sale notification was ordered to be published in the District Edition of Eenadu daily newspaper, but whereas it was published in Kovur Constituency edition only and therefore the sale is liable to be set aside. He submits that if the publication was done in the District Edition, more bidders would have participated in the auction of the property and it would have fetched more value. While seeking to set aside the order under challenge, he also submits that to prove the bona fides, the petitioner is ready to deposit the entire sale amount of Rs.20,90,000/-.
4) On the other hand, learned counsel for the respondent made submissions by placing a copy of the order 3 dated 31.10.2023 in C.M.A.No.244 of 2023 and contends that in the light of the said order, apart from the well considered order of the Court below no interference is called for by this Court.
5) Considered the submissions made and perused the material on record. On appreciation of the submissions made, the grievance of the petitioner is that the application for sale notice was not made in Nellore District Edition of Eenadu, but was published in Eenadu edition circulated in Kovur constituency and thereby mortgaged property secured less price. In the affidavit filed in support of the E.A., except stating that the publication made in Kovur constituency is defective and monetary loss was caused to the petitioner, nothing is divulged that the mortgaged property was sold for lesser value. Except marking Ex.P.1, i.e., Eenadu Daily Newspaper dated 25.11.2022, the petitioner has not filed any material/valuation report in respect of the mortgaged property. Learned District Judge after considering the matter, while observing that pursuant to the auction notice five bidders, including the Decree holder with the submission of the Court, participated in the auction, recorded a finding 4 that no evidence was adduced by the petitioner to substantiate that the schedule property was sold at a price below the market rate and prejudice is caused to her because of non-publication of auction notice in Eenadu, Nellore District Edition. Learned Judge has also observed that the petitioner did not aver or prove that she sustained substantial injury by reason of such publication. The above said conclusion of the learned District Judge are well founded.
6) Further, as seen from the orders in C.M.A.No.244 of 2023 on which reliance is placed by the learned counsel for the respondent, it is discernable that similar contentions raised with reference to the publication of auction notice were rejected. The said CMA was filed against the order dated 27.03.2023, passed in E.A.No.215 of 2022 in E.P.No.341 of 2017 in O.S.No.166 of 2014 contending that the appellant / claim petitioner is having prior mortgage over the property, which was brought to sale in the above referred suit, the said E.A. was filed seeking to set aside the sale dated 16.12.2022. It is the case of the claim petitioner that he filed a suit in O.S.No.38 of 2018 for recovery of an amount of Rs.10,00,000/- against the revision petitioner herein on the 5 strength of a promissory note, the property which is the subject matter of the suit in O.S.No.166 of 2014 was offered as security and title deeds in respect of the same were handed over to him. The said suit O.S.No.38 of 2018 was decreed on 03.07.2019 and by virtue of the said decree, he has got first charge over the property and is entitled to receive the sale proceeds in O.S.No.166 of 2014 in a rateable distribution and that the conduct of sale itself is an irregularity. The said E.A.No.215 of 2022 was dismissed, against which the above referred CMA was preferred before this Court.
7) It was, inter alia, argued on behalf of the appellant that the publication of sale of the mortgaged property was made in Kovuru Edition only instead of the District Edition, that the publication should have been made in the District Edition giving opportunity for more bidders to participate in the auction. It was also contended that as the publication was not made in the District edition, the property could not have been sold. The learned Judge after considering the matter, dismissed the CMA by an order dated 31.10.2023 the relevant portion of which reads as follows:
6
"14. This Court further observed that, one B.V.V.Subba Rao was the Advocate for the plaintiff in O.S.No.38 of 2018 which was filed by the appellant herein and one P.Sreenivasa Rao, Advocate appeared for the defendant in O.S.No.38 of 2018. The said defendant is the J.Dr in the suit. The Court below suo motu marked Ex.C1., which is vakalat filed by the Advocates viz., Sri P. Sreenivasa Rao and Sri B.V.V.Subba Rao on behalf of the Judgment Debtor in the E.P. AS both the advocates belong to one office, it appears that the said suit was collusive in nature."
8) Learned Judge after considering the matter, with reference to the publication of auction notice, concluded that appellant has not adduced any evidence to show that prejudice is caused to the appellant by virtue of the auction for the property and there is no proof of prior mortgage between the appellant and the Judgment Debtor and proof of material irregularities or fraud for setting aside the sale. In the light of the orders of the learned Judge rejecting the application of the claim petitioner to set aside the sale, rejecting the similar contentions raised in the present Civil Revision Petition, this Court is not inclined to accept the submission of the learned counsel to set aside the order 7 under challenge muchless depositing the auction amount of Rs.20,90,000/- by the petitioner.
9) On an appreciation of the material on record, including the orders in C.M.A.No.244 of 2023, this Court finds no good grounds to interfere with the order challenged in this Civil Revision Petition and accordingly the same is dismissed. No order as to costs.
10) Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________ NINALA JAYASURYA, J Date:02.02.2024.
Ssv