TMI Blog2000 (1) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... The court sale of the house property was effected upon payment of 25% of the sale price offered by the highest bidder. Subsequently, the sale was confirmed on 31st July 1978 upon payment of the full purchase once. 4. On 26th August, 1978 the respondents herein filed an application to set aside the auction sale dated 31st July, 1978. The learned District Munsif Rajamundhry, however, by an order dated 31st August, 1978 rejected this said application and thereafter confirmed the sale and disposed of the Execution Petition on the same day and a cheque fur ₹ 4420 was issued in favour of the Advocate for the decree holder and thereupon the full satisfaction was duly recorded. It is significant to note that the appellant took delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round for setting aside a sale under this rule. 7. On a plain reading of the provisions thus three several factors emerge and which ought to be taken note of in the matter of setting aside the sale of an immovable property, viz. (i) material irregularity and fraud in publishing or conducting the sale; (ii) the Court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud : and (iii) no application would be entertained upon a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale. 8. The third requirement as above needs however special mention by reason of the factum of incorporation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material regularity neither even an allegation in regard thereto. The only issue was of saleable interest for a period of 15 years since the deed of sale as executed by the Municipality of Rajamundhry in favour of the Judgment-Debtor, contained a conclusion that the property cannot be alienated by the Judgment-Debtor for period of 15 years. It is to be noticed at this juncture that question of saleable interest does not come within the ambit of Order 21 Rule 90 and as such the Judgment-Debtor had no locus standi to apply to the Court for setting aside the sale. In the present factual context, statute recognizes such a locus standi only in the event of material irregularity or fraud and not otherwise. Apart therefrom, saleable interest can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished or the deposit made as aforesaid shall be liable to be proceeded against only to the extent of the deficit on a re-sale of the property already brought to sale. In the present proviso after the word Provided insert the word further . 13. It is on this score that the Learned District Munsif ahs offered such an opportunity to avoid the sale by deposit of money, as such there is (sic) compliance thereof the requirement of law in terms of the Andhra Pradesh Amendment to the provisions of the Code as noticed above. 14. The contextual facts depict that the Revision Petition was allowed on 24.4.1980 that is long after the completion of sale and the factum of which has been totally ignored and the Learned Single Judge as a matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 115 is clear enough to indicate that an order passed by court subordinate to the High Court in its appellate jurisdiction, if it is not appealable, would he within the ambit of Section 115 of the Code and thus a revisional application would be maintainable. A revision application against an order which is not appealable either before the subordinate court or the High Court would also be maintainable. 16. In that view of the matter, this Appeal succeeds. The order passed by the Learned Single Judge as impugned in this Appeal stands set aside and (sic)shed and so is the order dated 22.12.80 in review petition. The order the Executing Court dated 31.8.78 thus stands confirmed. 17. In view of the fact of possession of the property b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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