GORUSU SRINIVASA REDDY Vs. SK. MAHABUB SUBHANI

JUDGEMENT

(1.) The Petitioner herein is the 1st respondent/D.Hr in E.A.No.5 of 2020 in E.P.No.22/2014 in O.S.79/2006.

(2.) The present revision is filed aggrieved by the notice dtd. 7/1/2020 passed in E.A.5/2020 in E.P.No.22/2014 in O.S.79/2006 on the file of the Principal Senior Civil Judge, Anakapalle. The petitioner filed O.S.79/2006 on the file of the Principal Senior Civil Judge, Anakapalle against the respondent nos.3 and 4 herein for recovery of an amount of Rs.5,42,000.00 with subsequent interest based on a mortgage. On careful consideration, the trial Court has passed a preliminary decree on 17/10/2006 and when the respondents failed to pay the decretal amount, a final decree was passed on 28/12/2012. When the respondents failed to pay the said final decree amount, the petitioner filed E.P.No.22/2014 praying the Court below to order to sell the mortgaged property for realization of the decretal amount. Auction for sale of the mortgaged property was scheduled to be held on 13/12/2019. On the said date, the 1st and 2nd respondents i.e. third party claim petitioners filed the petition under Order 21 Rule 58 CPC. Initially the office has taken an objection and the same was returned. But without deciding the liability of the claim petition in a mortgage deed, the executing court entertained the claim petition filed by 3rd parties and numbered as E.A.No.5/2020. Aggrieved by the same, the present revision is filed.

(3.) Sri P. Rajasekhar, learned Counsel appearing on behalf of the petitioner has stated that initially Court below has taken an objection with regard to the maintainability and the same was adjourned on several occasions and without deciding the said issue straight away numbered the E.A. and issued notice to the petitioner herein and the same is contrary to Order XXI Rule 58 CPC and also to several decisions of the High Courts. To support his contention, he mainly relied on two decisions reported in T. Nabi Sab vs. G. Venkatesulu and another, (2008) 4 ALD 770. Learned Counsel has strongly objected that the numbering of E.A is contrary to Order XXI Rule 58 CPC which reads as follows: