The High Court dismissed a civil revision petition challenging interim orders in an execution sale. It held that since the lower appellate court stayed confirmation of sale, the executing court's order on auction formalities remains subject to the pending appeal and lacks merit.
The Civil Revision Petition is dismissed with no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
CRP No.789/2009
Date of Order: 4-3-2011 Between:
1. V. Varalakshmi and others ..Petitioners and 1. Aswadati Moulali and others ..Respondents
The Court made the following Order:
THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
CRP No.789/2009
Oral order:
The petitioners, who are third party claimants to EP No.506/2004 in OS No.14/2002 on the file of Principal Junior Civil Judge, Machilipatnam, filed EA No.1869/2005 claiming exclusive title over the EP schedule property, namely, first item- Ac.1-00 of went land in R.S.No.225/2 of Tallapalem village in Bandar Mandal of Krishna and second item-Ac.1-00 of went land out of 6-27 cents in R.S.No.381/2-B of the same village. The executing court by order dt.157-2008 partly allowed the petition raising attachment in respect of undivided share of Ac.0-25 cents in R.S.No.225/2 and undivided share of Ac.0-75 cents in R.S.No.381/2-B, holding that sale can be conducted in respect of undivided share of Ac.0-75 cents in R.S.No.225/2 and undivided share of Ac.0-25 cents in RS No.381/2-B of Tallapalem village to realize the decretal amount. Against the orders of the executing court, the petitioners filed AS No. 156/2008 before the VI Additional District & Sessions Judge, Krishna at Machilipatnam. The lower appellate court while issuing notice in IA
No.218/2008, ordered that all proceedings in EP No.506/004 in OS No.14/2002 shall go on but confirmation of sale alone shall be stayed till 15-10-2008. The said appeal is still pending. On obtaining interim orders from the lower appellate court, the petitioners filed a memo before the executing court requesting it to demarcate the land in Ac.0-25 cents in item No.1 and Ac.075 cents in item No.2. Since auction went on pursuant to the interim order for the remaining extent of Ac.075 cents out of Ac.1-00 cents in item No.1, (R.S.No.225/2) which is sufficient to meet the EP amount, the executing court passed an order on 5-1-2009 permitting the auction purchaser to remit the amount into court fee account by 6-12009 and balance amount by way of challan in substitution of NJ stamps should be deposited on or before 19-10-2009. Questioning the same, the present revision is filed contending that the executing court without fixing the boundaries of the property allotting Ac.0-25 cents to the petitioners as per memo proceeded with the auction. This court do no find any merits in the revision for the reason the execution court has not confirmed the sale except completing the formalities. Since the confirmation of sale is stayed by the lower appellate court, the impugned order passed by the executing court will always be subject to the result of the appeal. Therefore, the Civil Revision Petition cannot be entertained and it is accordingly dismissed. No costs.
_______________ A.GOPAL REDDY, J. Dt.4-3-2011 kmr
2 issues framed by the court
Whether the Civil Revision Petition can be entertained when the executing court has not confirmed the sale and confirmation is stayed by the lower appellate court.
Whether the executing court committed an error by proceeding with auction formalities without fixing property boundaries before confirmation.
V. Varalakshmi and others
Aswadati Moulali and others
A. GOPAL REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
