POTHUGANTI VENKATESHWARULU Vs. YANGALA MALLAIAH

JUDGEMENT

(1.) This civil revision petition is filed against the order dated 17-11-2000 in E.P. No. 115 of 2000 in O.S. No. 24 of 2000 passed by the Senior Civil Judge, Miryalaguda ordering proclamation of sale of the schedule properties of the petitioners/judgment-debtors which were attached before judgment vide order dated 8-6-2000 in I.A. No. 256 of 2000 in O.S. No. 24 of 2000 for realization of the decretal amount of Rs. 2,37,962.00.

(2.) It is contended by the learned counsel for the petitioners that since the petitioners could not discharge their debts I.P. No. 11 of 2000 on the file of the Principal Senior Civil Judge, Rangareddi was filed and in the said insolvency petition the petitioners were also shown as parties and in spite of the said fact of filing the insolvency petition the respondent/decree-holder filed the present E.P. No. 115 of 2000 and obtained an attachment order in respect of some of the properties mentioned in B schedule. It is further submitted that the insolvency petition was filed even before the impugned order by the Court below was passed. Therefore, it is contended that the respondent/decree-holder with the knowledge that I.P. No. 11 of 2000 was already filed got attached the above properties and obtained ex-parte decree. It is further submitted that the fact that the E.P. schedule properties are the subject-matter of the said insolvency petition was also brought to the notice of the Court below and in spite of which the impugned order for proclamation of the sale of the properties was passed against which the present civil revision petition is filed.

(3.) On the other hand, the learned counsel appearing for the respondent/decree- holder submitted that no doubt I.P. No. 11 of 2000 was filed but there was no order passed by the Court before which the insolvency proceedings are pending exercising power under S. 52 of the Provincial Insolvency Act, 1920. Therefore, the properties are still covered by the order of attachment passed by the Court below. He further submitted that merely because I.P. No. 11 of 2000 was filed the right of the creditor would not wither away. In support of his contention he placed reliance on the judgment rendered in Kuppu Boyan v. Sengottaiyan, AIR 1983 Madras 314, wherein it was held as follows (para 6):