S.C.AGRAWAL - (1.) LEAVE granted.
(2.) WE have heard learned counsel for the parties. These appeals are by the auction purchaser of a property sold to him in execution proceedings. A money decree was passed against respondent No. 1 in O.S. No. 148 of 1970 filed by respondent No. 2. In execution of the said decree the property of respondent No. 1 was sold by auction on 26/03/1985 to the appellant whose bid of Rs. 3,01,000.00 was the highest. In the sale certificate dated 8/04/1987 the property that was sold was thus described in the Schedule: "East Godavari District, Rajahmundry Taluk, Gandhi-nagaram, Block No. II, Rajahmundry belonging to the judgement debtors and named as "Chandrika Nilayam" in S.S. No. 67 and present No. 21-6 terraced house, situated within the following bounderies - JUDGEMENT_252_3_1995Html1.htm The same description was given in the sale proclamation. Before issuance of the sale certificate respondent No.1 had filed petitions, E.A. Nos. 387 of 1985 and 506 of 1985 under Order 21 Rules 90 and 91, C.P.C. for setting aside the sale which was held on 26/03/1985. One of the grounds that was urged for setting aside the sale in the said petitions was that respondent No. 1 had only 1/4th share in the property and further that the property was worth Rs. 5 lakhs and the bid was too low. Along with the said petitions respondent No. 1 also filed a schedule which gave the description of the property in the same terms as mentioned in the sale proclamation and sale certificate. The said petitions were dismissed by the executing court by order dated 21/04/1986 and the sale was confirmed on 8/04/1987 and the sale certificate was granted to the appellant. In pursuance of the sale certificate the appellant obtained possession of the entire property within the boundaries as mentioned in the sale certificate on 22/04/1987. After the delivery of the possession respondent No. L filed a suit, O.S. No. 107/87, in the court of Subordinate Judge, Rajahmundry for a declaration that the sale certificate dated 8/04/1989 issued in favour of the appellant does not pass title to the property bearing Door. No. 14/7 and relates only to the terraced building and for a permanent injunction restraining the appellant from interfering with the peaceful possession and enjoyment of respondent No.1 in respect of the other building. During the pendency of the said suit respondent No.1 filed a petition, E.A. No. 478 of 1990, in the execution proceedings, under Section 47 read with Section 151 C. P. C. Wherein he prayed for a declaration that the sale certificate does not pass title to the appellant in respect of the property mentioned in the schedule to the said application, hereinafter referred to as "the petition schedule property," on the ground that even though there was no attachment and sale of the said property and even though the appellant did not purchase the same and even though the sale certificate does not contain it the appellant had taken the delivery of possession of the said property in the execution proceedings. The boundaries by respondent No. 1 in the said petition JUDGEMENT_252_3_1995Html2.htm
(3.) THE said petition was contested by the appellant as well as by the decree holder (respondent No.2) who asserted that the petition schedule property was also brought to sale after attachment and was in fact sold by the court and it is also covered by the sale certificate. THE Subordinate Judge, by order dated 5/11/1991, dismissed the said petition of respondent No. 1. It was held that the petition schedule property is located within the boundaries mentioned in the schedule to the execution petition as well as in the schedule attached to the sale certificate. THE subordinate Judge rejected the contention that there were two buildings, the terraced building and the upstair building, and held that there is only one structure on the terrace which looks like a stair-case room and there is absolutely no upstair building at all and that the major portion of the building is a terraced one and that in spite of the location of a small room on the terrace the building remains a terraced building only. According to the Subordinate Judge the sale proclamation and sale certificate clearly go to show that the property purchased by the appellant extends up to the park on the west and up to the house of M. V. Reddy on the east and that the petition schedule property is part and parcel of the property within the said boundaries and, therefore, the petition schedule property was also purchased by the appellant under the sale certificate and the appellant was entitled for the entire property including the petition schedule property under the sale certificate and is entailed to take the delivery of the entire property including the petition schedule property. Feeling aggrieved by the said order of the Subordinate Judge respondent No. 1 filed a revision petition, C.R.P. No.3998 of 1991, in the Andhra Pradesh High Court. THE said revision petition was allowed by the High Court by Judgment dated 29/03/1994. THE High court was of the view that when respondent No. 1 raised the contention that within the boundaries there is other upstair building with vacant site of 300 and odd sq. yards and that the property that was sold pursuant to the auction and delivered was only the terraced building, the lower court ought to have appointed a Commissioner in order to find whether in fact there is any upstair building in the said site and that if there is also upstair building and vacant site within the boundaries the appellant is not entitled to take delivery of the upstair building as the only property that was brought to sale was the terraced building within the boundaries mentioned therein and further that the sale certificate does not refer to the upstairbuilding and the vacant site. THE High court , therefore remitted the matter to the executing court with the direction to appoint a commissioner to make local inspection of the petition schedule property and if within the boundaries mentioned in the sale certificate, there is an upstair building which is not included in the sale certificate and the vacant site adjacent to it he may direct re-delivery of that property and if there is no upstair building and the vacant site within the boundaries mentioned in the sale certificate, the Subordinate Judge may dispose of the execution application in accordance with law. THE appellant filed a review petition for the review of the said order of the High Court but the same was dismissed by order dated 23/11/1994. THEse appeals are filed against the said orders of the High Court dated 29/03/1994 and 23/11/1994. Shri. R. F. Nariman, the learned senior counsel appearing for the appellant, has submitted that the High Court , in exercise of its revisional jurisdiction under Section 115 C. P. C., was in error in interfering with the order passed by the Subordinate Judge dismissing the application filed by respondent No.1 under Section 47 read with Section 151 C.P.C. The submission of Shri Nariman was that the boundaries of the property which was sold in the auction sale are clearly indicated in the sale certificate and they are the same boundaries as are mentioned in the sale proclamation and that in view of the said description in the sale certificate the entire property lying within those boundaries was the subject-matter of sale in favour of the appellant. The submission of Shri Nariman was that the sale certificate issued in favour of the appellant is conclusive and that the Subordinate judge had correctly construed it and that there was no infirmity in the order passed by the Subordinate Judge which could justify interference by the High court in exercise of its revisional jurisdiction.;