JAMPANA RAJYA LAKSHMI Vs. PATTAPU SEENAIAH

JUDGEMENT

(1.) This revision petition is directed against the order dated 20-12-2002 in E.P. No.60 of 2002 in O.S. No.277 of 1997 on the file of the Principal Senior Civil Judge, Ongole.

(2.) The facts, in brief, are as under :

(3.) The first respondent herein filed O.S. No.277 of 1997 for recovery of money and the same was decreed on 24-4-2000. Even during the pendency of the suit, an order of attachment before judgment under Order XXXVIII Rule 5 C.P.C. was in operation against the schedule property. After the suit was decreed, the plaintiff/ decree holder/first respondent herein filed E.P. No.60 of 2002 for sale of the attached property. The revision petitioner/ first judgment-debtor opposed the execution proceedings contending that pending the suit, she filed I.P. No.49 of 1998 under Section 10 of the Provincial Insolvency Act, 1920 (for short 'the Act') to adjudicate her as insolvent and the same was allowed, by virtue of which all the properties of the revision petitioner/first judgment-debtor including the house property which was attached under Order XXXVIII Rule 5 C.P.C., pending the suit vested with the official receiver and therefore, the only remedy available to the decree holder was to receive dividends from the Official Receiver but the decree in O.S. No.277 of 1997 cannot be executed independently. The said objection was overruled by the Court below holding that since the property in question was attached even before filing of the insolvency petition, the decree holder is a secured creditor and thus it is open to him to bring the property to sale. Accordingly, by order dated 20-12-2002, the execution petition was allowed. The said order is under challenged in this revision petition,