Andhra Pradesh High Court - Amravati
Badi Rajeswari vs Bindu Mukthi on 21 October, 2022
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.
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
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.
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
