@JUDGMENTTAG-ORDER
V. Bhaskara Rao, J.@mdashThe judgment and decretal order in CMA. No. 190/1990 on the file of I Additional Subordinate Judge, Vijayawada,
dated 15-6-1992 setting aside the order dated 20-11-1990 in E.A. No. 1478/1990 on the file of I Additional District Munsif, Vijayawada, who
dismissed the petition for setting aside the sale under Order XXI Rule 90 read with Section 151 of the Code of Civil Procedure, is challenged in
this revision petition.
2. The facts giving rise to this revision petition in brief are:
That the decree holder/respondent No. 2 herein obtained a decree against judgment debtor/respondent No. 1 herein and the property was sold in
execution of the said decree. The revision petitioner herein is the auction purchaser. Respondent No. 1 filed E.A. No. 1478/1990 seeking setting
aside of the said sale held on 29-8-1990 under Order XXI Rule 90 read with Section 151 of the Code of Civil Procedure. That petition was
dismissed for default by the learned Munsif on 20-11-1990. Thereupon respondent No. 1 filed a restoration petition in the same Court and also
preferred CM. A. No. 190/1990 in the Court of I Additional Subordinate Judge, Vijayawada. On a consideration of the contentions raised by
both sides, the learned I Additional Subordinate Judge, Vijayawada, allowed the appeal and set aside the dismissal order in E.A. No. 1478/1990
and accordingly E.A. No. 1478/1990 has been restored to file. The auction purchaser carried the matter in revision to this Court.
3. Mr. Ramanarayana, learned Counsel for the revision petitioner/auction purchaser contended that although respondent No. 1 is entitled for two
remedies viz., (1) to file restoration petition in the Executing Court and (2) to prefer CM. A., to the appellate Court, he has to exercise the option
and adopt only one remedy, whereas in this case he has adopted both the remedies and that has resulted in conflicting judgments. He asserted that
the learned I Additional District Munsif had dismissed the restoration petition also on merits and that order has become final. He, therefore,
contended that the impugned order in this revision petition will have to be set aside so as to fall in line with the order which has already become
final. On the other hand Mr. Adinarayana Rao, learned Counsel for respondent No. 1 contended that this is only an order of remand and it has
been held that opportunity should be given to both the parties before passing any order. He, therefore, urged that an opportunity may be given to
respondent No. 1 by maintaining the impugned order. As regards the assertion of Mr. Ramanarayana that the learned I Additional District Munsif
dismissed the restoration petition on merits he stated that he has no instructions in that regard and that he would verify the same.
4. On the representation of Mr. Adinarayana, learned Counsel for respondent No. 1, the matter has been adjourned several times and sufficient
time has been granted, yet he is unable to controvert the contention of Mr. Ramanarayana that the restoration petition has been dismissed on
merits. I find merit in the contention of Mr. Ramanarayana that a party who has an option to exercise one of two remedies, has to choose the same
before adopting one of them, but he cannot adopt both the remedies and invite two conflicting orders. It is an elementary principle that a situation
like this leading to conflicting orders/judgments cannot be allowed and hence it is necessary that respondent No. 1 should have adopted one of two
remedies, which were open to him. When the dismissal order in the restoration petition has become final, there is no other alternative for this Court
(except) to allow this C.R.F. and set aside the impugned order to resolve the conflict.
5. For the above reasons, the Civil Revision Petition is allowed and the impugned order is set aside. Consequently the order in E.A. No.
1478/1990 dismissing the petition under Order XXI Rule 90 read with Section 151 of the CPC passed by the I Additional District Munsif,
Vijayawada stands restored. There will be no order as to costs.