Pattisapu Anantha Bhaskara ... vs Madala Sri Venkata Ramana Murthy ...
2022 Latest Caselaw 7145 AP

        THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTI

           CIVIL REVISION PETITION NO.3832 OF 2010

O R D E R:

This Civil Revision Petition is directed under Section

115 of C.P.C., against the order, dated 02.07.2010, in

E.P.No.463 of 2001 in O.S.No.1018 of 2001 on the file of the

Principal Junior Civil Judge Court, Ramachandrapuram, East

Godavari District, where under the petition filed under Order

XXI Rule 52 of the Code of Civil Procedure, 1908 against 1st

J.Dr., directing the garnishee to effect attachment and to remit

the same into the Civil Court Deposit was dismissed.

2. The facts behind the said E.P., filed by the Decree

Holder were that, he filed O.S.1018/2001 on the file of I Addl.

Junior Civil Judge Court, Rajahmundry, obtained the decree on

22.11.2004, which was got transmitted to Principal Junior Civil

Judge Court, Ramachandrapuram, where the schedule property

is situated. Even after passing the decree, the Judgment

Debtors failed to pay the amount due under the decree.

Previously, the Decree Holder filed E.P.11/2006 for sale of the

immovable property of the J.Drs., but the same was not-pressed

on 13.11.2007, because the property was auctioned by ING BVLNC, J CRP No.3832 of 2010 Page 2 of 9 Dt.19.09.2022

Vysya Bank, Ramachandrapuram Branch. An amount of

Rs.3,63,385/- belongs to the 1st J.Dr., is lying in the custody of

the bank vide Account No.741044000280 being the excess

amount of auction bid amount. As such he is entitled to recover

the E.P., amount of Rs.67,146/- from out of the balance

amount lying with garnishee.

3. The Judgment Debtors 1 and 2 remained ex parte

before the trial court.

4. The Garnishee-Bank i.e., ING Vysya Bank,

Ramachandrapuram filed counter admitting the fact that it

realized a sum of Rs.7,10,000/- in a public auction of the house

property under SARFAESI Act, 2002 and still there is balance of

Rs.3,63,385/- lying in their bank. While the matter stood thus,

a suit notice was received from Senior Civil Judge Court,

Ramachandrapuram in O.S.No.258/2007 by showing the bank

as a party therein stating that the J.Dr., borrowed a sum of

Rs.1,50,000/- on 08.11.2001 from Chandaila Veerasekhara

Kumar by executing a registered simple mortgage deed and filed

the suit for realization of Rs.3,63,000/- for passing a

preliminary decree, and to pass a decree for the balance amount

of unsatisfied decree against the garnishee-bank. Hence, the

bank has to pay the amount towards preliminary decree to be BVLNC, J CRP No.3832 of 2010 Page 3 of 9 Dt.19.09.2022

passed by the Senior Civil Judge Court, Ramachandrapuram in

respect of 2nd mortgage executed by the J.Dr., and no amount

remains to withhold by the bank. Further, one Smt. Vaitla

Satyavathi, D.Hr., in E.P.No.442/2007 in O.S.No.380/2001 on

the file of Prl. Junior Civil Judge Court, Ramachandrapuram

issued an attachment notice to withhold a sum of Rs.1,05,421/-

towards the said decree debt.

5. On hearing both parties, the executing court held

that as the 2nd mortgagee is a secured and preferential creditor

and the mortgage runs along with the property, thus priority

shall be given to the 2nd mortgagee and no amount is lying with

the garnishee after deducting the sum of Rs.3,63,000/-, as such

the D.Hr., is not entitled for attachment of the same.

6. No evidence, either oral or documentary, was

adduced on behalf of both parties.

7. Heard Sri Y.S.Siva Bhami Reddy, learned counsel

for the petitioner/decree holder, Sri N.Siva Reddy, learned

counsel appearing for the judgment debtors and Smt.

V.Dyumani, learned counsel appearing for the garnishee-bank.

8. The petitioner filed the execution petition against

the respondents/judgment debtors 1 and 2 and also impleading BVLNC, J CRP No.3832 of 2010 Page 4 of 9 Dt.19.09.2022

the garnishee-bank as a party to the proceedings. The E.P., was

filed under Order 21, Rule 52 of the Code of Civil Procedure

with a prayer to direct the garnishee to effect the attachment

and to remit the E.P., amount into the Court by way of Demand

Draft or Cheque. The record shows that an amount of

Rs.67,146/- was claimed towards the E.P., amount.

9. The garnishee opposed the E.P., on the ground that

the property attached by the Court in this case on 22.10.2001

was sold by the bank in a public auction held on 05.10.2007

under the provisions of SARFAESI Act for Rs.7,10,000/- in

order to secure the loan amount of Rs.3,18,000/- and after

adjusting the loan amount, a sum of Rs.3,63,385/- is available

with the bank as the amount payable to the judgment debtors

and contended that the bank received a notice from Senior Civil

Judge Court at Ramachandrapuram in O.S.No.258/2007

informing that the judgment debtors borrowed a sum of

Rs.1,50,000/- on 08.11.2001 by executing a simple registered

mortgage in favour of one Chandalla Veerasekhara Kumar and

he filed a suit for recovery of an amount of Rs.3,63,000/- due

under the said mortgage and therefore, no amount is available

with the bank for effecting the attachment and to remit the

amount as prayed for in this case.

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10. Admittedly, in this case the attachment order was

effected on 22.10.2001 in I.A.No.965/2001 in

O.S.No.1018/2001 on the file of I Addl. Junior Civil Judge

Court, Rajahmundry field by the D.Hr., against the J.Drs., 1

and 2. Therefore, the mortgage said to be executed by the

J.Drs., 1and 2 in favour of Chandalla Veerasekhara Kumar on

08.11.2001 is subsequent to the attachment effected on

22.10.2001 in I.A.No.965/2001 in O.S.No.1018/2001.

11. The trial Court in its order mentioned that the

garnishee contended that one Smt. Vaitla Satyavathi, a decree

holder in E.P.No.442/2007 in O.S.No.380/2001 on the file of

Prl. Junior Civil Judge Court, Ramachandrapuram obtained an

attachment order against the garnishee to withhold a sum of

Rs.1,05,421/- towards the decree amount and to remit the said

amount to the Court.

12. The learned trial Court dismissed E.P., in the case

on the ground that mortgagee is a secured creditor and the

mortgage runs along with the property and the secured creditor

shall be given priority as he filed the suit against the J.Drs., and

garnishee was made as party to the proceedings and therefore,

no amount will remain with the garnishee after deducting the

amount payable in the suit filed by the mortgagee.

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13. The learned counsel for the revision petitioner

submitted that the trial Court while dismissing the execution

petition on 02.07.2010 filed by the petitioner, on the same day

has allowed the execution petition filed by said Vaitla Satyavathi

in E.P.442/2007 in O.S.380/2001 on the very same day, which

was also filed under Order 21, Rule 52 of CPC for an amount of

Rs.1,05,000/-, wherein the same garnishee pleaded about the

mortgage in favour of Chandalla Veerasekhara Kumar and the

suit filed by him.

14. The petitioner filed copy of the order dt.02.07.2010

in E.P.442/2007 in O.S.380/2001 on the file of Prl. Junior Civil

Judge, Ramachandrapuram. It shows that the said E.P., was

filed by Vaitla Satyavathi against the same judgment debtors

and garnishee for an amount of Rs.1,05,000/- under Order 21,

Rule 52 of CPC and in that execution petition the garnishee has

taken the same plea as raised in the case on hand.

15. The trial Court repelled the contention of the

garnishee-bank in the said E.P., on the ground that the

mortgage transaction is subsequent to the date of attachment

and as such it is not binding on the decree holder and as per

Section 64 of the Code of Civil Procedure private alienation of

the property after attachment is void and that this fact was not BVLNC, J CRP No.3832 of 2010 Page 7 of 9 Dt.19.09.2022

denied by the garnishee and the trial Court accordingly allowed

the said E.P., filed under Order 21, Rule 52 of CPC and made

the attachment absolute.

16. In the case on hand, there is no dispute about the

fact that attachment in this case was effected on 22.10.2001 in

I.A.No.965/2001 in O.S.No.1018/2001 filed by the decree

holder against the judgment debtors. The alleged mortgage in

favour of Chandalla Veerasekhara Kumar was on 08.11.2001.

Therefore, it is subsequent to the date of attachment order of

the Court. Section 64 of the Code of Civil Procedure deals with

private alienation of property after attachment.

Section 64 of C.P.C., reads as follows:-

(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.

Explanation-For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

 BVLNC, J                                                 CRP No.3832 of 2010
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17. In the case on hand, admittedly, the mortgage was

after attachment effected in the case. Hence, any payment to

the judgment debtors of any debt, dividend or other monies

contrary to such attachment, shall be void as against all claims

enforceable under the attachment.

18. In the light of above facts and law, the order of the

trial Court is liable to be set aside as the trial Court committed

irregularity by dismissing the execution petition contrary to the

facts and law in the case.

19. In the result, the revision petition is allowed and the

order dt.02.07.2010 in E.P.No.463 of 2001 in O.S.No.1018 of

2001 on the file of Prl. Junior Civil Judge Court,

Ramachandrapuram is set aside, directing the garnishee-bank

to deposit the E.P., amount into the Court by way of D.D., or

cheque to the credit of the suit account.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

                                                                __________
                                                                BVLNC, J

19th September, 2022
dvsn
 BVLNC, J                                   CRP No.3832 of 2010
Page 9 of 9                                      Dt.19.09.2022

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

CIVIL REVISION PETITION NO.3832 OF 2010

Date:19.09.2022 DVSN