Andhra Pradesh High Court - Amravati
Orsu Bhulakshmi vs Chundru Parvathi Chunduri ... on 10 April, 2023
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.277 of 2023
Between:
Orsu Bhulakshmi, W/o Srinivasa Rao, Hindu,
aged about 37 years, Housewife, R/o Door
No.88-127, 3rd Line, Seetharam Nagar, opp:
Reddy College, Guntur.
... Petitioner/third party
Versus
Chundru Parvathi @ Chunduri Paravathi, W/o
Late Venkateswarlu, Hindu, aged about 67
years, Housewife, R/o Door No.2-123,
Gundallapadu Village, Phirangipuram Mandal,
Guntur District and two others
... Respondents/Decree holder
/Judgment debtor/ auction
Purchaser
Counsel for the petitioner : Smt. T.V. Sridevi
Counsel for respondent : Sri M. Koteswara Rao and
Sri Venkata Durga Rao
Anantha
ORDER
Third party to E.P.No.213 of 2019 filed the above
revision against the order dated 24.01.2023 in CFR No.788 of
2023 in E.P.No.213 of 2019 in O.S.No.71 of 2017 on the file
of learned I Additional Senior Civil Judge, Guntur.
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CRP No.277 of 2023
2. Respondent No.1 herein, being plaintiff, filed suit
O.S.No.71 of 2017 against respondent No.2 for recovery of
amount. Suit was decreed on 04.04.2019. Pursuant to the
decree, plaintiff filed E.P.No.213 of 2019 and sale was
conducted. Respondent No.3 herein became successful
auction purchaser. At that juncture, petitioner herein filed an
application under Order XX1 Rule 90 of CPC read with
Sections 28 and 51 of the Provincial Insolvency Act, 1920
vide CFR No. 788 of 2023 in E.P.No.213 of 2019 seeking to
set aside sale of petition schedule property. The said
application was returned by the office of Executing Court, on
24.01.2023, by raising following objections:
"1. How the 3rd party can question the sale
conducted in Execution Petition.
2. When the schedule property was not vested
with the Official receiver in IP.7/2020, how the
petitioner/3rd party can maintain the present
petition."
3. On the same day, Executing Court passed the following
docket order in E.P.No.213 of 2019:
"No stay or claim petition are pending as per the
office note. The petition filed by third party
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CRP No.277 of 2023
U/Or.21, R.20 of CPC to set aside the sale is
returned as not maintainable. Hence, the sale is
confirmed in favour of auction purchaser. Office is
directed to prepare Sale Certificate. Call on
31.01.2023."
Aggrieved by return endorsement the above revision is
filed by third party.
4. Heard learned counsel on either side.
5. Learned counsel for the petitioner submits that
judgment debtor along with her husband filed I.P.No.7 of
2020 and petition schedule property was also shown as one
of the schedule properties in I.P.No.7 of 2020. She submits
that respondent No.1 is not a secured creditor to have
preference over the other creditors in insolvency proceedings.
She submits that Section 51 of Provincial Insolvency Act
restricts the rights of creditor under execution and section 28
of the Provincial Insolvency Act the properties of the insolvent
have to be distributed among all the creditors. Therefore,
Executing Court ought to have numbered the petition and
decide the same on merits instead of returning the I.A.
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CRP No.277 of 2023
6. On the other hand, learned counsel for the respondents
supported return endorsement of the Executing Court.
7. The point to be considered is whether the order under
revision warrants interference?
8. When an I.A was under Order XX1 Rule 90 of CPC read
with Sections 28 and 51 of the Provincial Insolvency Act,
1920 to set aside the sale, Executing Court returned the
application without numbering the same. Executing Court
ought to have numbered the I.A. if it is otherwise in order and
decided the application on merits, instead of returning the
application and proceeding with execution. If the Executing
Court decides the I.A on merits, qua third party filing
petition, in case, the order goes against it, will be in a
position to file appeal or revision. However, in the case on
hand, without giving opportunity to the petitioner, Executing
Court returned the application.
9. In the opinion of this Court, trial Court has not
properly exercised the jurisdiction vested with it. Since
Executing Court returned CFR No.788 of 2023 in E.P.No.213
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CRP No.277 of 2023
of 2019, petitioner shall represent the same by complying
office objections.
10. Trial Court shall consider the maintainability of I.A and
pass appropriate orders on merits. Till such orders are
passed by the Executing Court in CFR No.788 of 2023,
Executing Court shall not proceed further in E.P.No.213 of
2019.
11. With the above direction, this Civil Revision Petition is
disposed of. No costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
_________________________
SUBBA REDDY SATTI, J
Date : 10.04.2023
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CRP No.277 of 2023
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.277 of 2023
Date : 10.04.2023
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