HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
MAIN CASE NO.: C.R.P.No.2081 of 2022
PROCEEDING SHEET
Sl. OFFICE
No.
Date ORDER NOTE
02 21.10.2022 SRS, J
Third party to E.P.No.16 of 2014, filed
E.A.No.27 of 2016 under Section 73 r/w 151 of
CPC seeking following reliefs:
"that the Honourable Court has no jurisdiction
to receive the assets belongs to the 2nd
respondent/Judgment debtor, which are in
possession of the 3rd respondent and distribute the same to the 1st respondent as the 2nd respondent/Judgment debtor already declared as insolvent in I.P.No.9 of 2014 on the file of Principal Senior Civil Judge, Nellore and number of insolvency cases against 2nd respondent are pending and the Official Receiver is competent person to receive the assets of the 2nd respondent/Judgment debtor and distribute those assets among the general body of creditors."
The said application was opposed by decree holder in O.S.No.178 of 2013.
Initially application was dismissed and against the said order, C.R.P.Nos.2618 of 2019 and 2621 of 2019 were filed. This Court allowed the C.R.Ps and remanded the matter for fresh disposal. After evidence was let in, by order dated 12.09.2022, E.A.No.27 of 2016 filed by revision petitioner was dismissed. Aggrieved by the same, the present civil revision petition is filed. 2 Heard Mrs.Y.L.Shivakalpana Reddy, learned counsel for petitioner and Sri A.Radhakrishna, learned counsel for 1st respondent/decree holder.
Learned counsel for petitioner would contend that 2nd respondent/Judgment Debtor was adjudged as insolvent in I.P.No.8 of 2015 and the Official Receiver addressed letters dated 08.07.2016 and 29.11.2019 to the Civil Court to send the available amount lying in E.P.No.16 of 2014 in O.S.No.178 of 2013 and E.P.No.51 of 2014 in O.S.No.57 of 2013. She would submit that decree holder in O.S.No.178 of 2013 is allowed to appropriate the amount towards satisfaction of his decree, petitioner, being decree holder in O.S.No. 71 of 2014 may not be realizing the amount.
On the other hand, learned counsel appearing for D.Hr would submit that Section 73 of CPC has no application since the properties are put to auction under SARFAESI Act, 2002 by 3rd respondent-bank. After appropriating the amount by the bank, the remaining amount was attached, by 1st respondent/decree holder, in E.P.No.16 of 2014. He also would submit that during the cross 3 examination revision petitioner admitted that she has no objection for issuance of cheque in favour of decree holder, except her amount and thus submits that the trial Court rightly considered the matter. He would also submit that E.P.No.16 of 2014 is terminated and hence, grant of interim order does not arise.
Per contra, learned counsel for petitioner would submit that E.P.No.16 of 2014 is still pending.
Whether Section 73 of CPC is applicable to the facts of the case, since the properties were put to auction not by the civil Court, but pursuant to proceedings under SARFAESI Act, 2002, requires examination.
The petitioner admitted in her cross examination that she has no objection for issuance of cheque to the decree holder, except for her amount.
Sri A.Radhakrishna, learned counsel for 1st respondent/decree holder would submit that cheque petition is filed for Rs.1,37,00,000/- and the amount lying to the credit of E.P.No.16 of 2014 is more than Rs.2 crores.
4
Recording the said statement, the executing Court shall not disburse the amount more than Rs.1,37,00,000/- in favour of 1st respondent/ decree holder in O.S.No.178 of 2013. The executing Court shall retain the amount other than Rs.1,37,00,000/- as indicated by Sri A.Radhakrishna, learned counsel, to the credit of E.P.No.16 of 2014 until further orders. Admit Issue notice to 3rd respondent.
Learned counsel for the petitioner is permitted to take out personal to 3rd respondent by way of registered post and file proof service.
List on 25.11.2022.
___________ SRS,J PVD