SAMMAC ENTERPRISES Vs. R V RAGHAVA RAO

JUDGEMENT

(1.) 1. These two revision petitions concern with Section 64 of the Civil Procedure Code and they have come before us on a refererence by our learned brother Ramanujulu Naidu, J. The order of reference reads :

(2.) Both the civil revision petitions arise out of a conmon order made by the learned 1 Addl Subordinate Judge, Vijayawada in a batch of applications disposed of on 17-8-1978. For the sake of convenience the parties are referred to as arrayed in CRP 5063/78. The 3rd respondent obtained a decree on 30-8-1962 in O.S. No. 30/61 on the file of ths Sub-Court, Bapatla, against the first respondent for Rs. 4,000/-. She leived attachment before judgement in respect of a building belonging to the first respondent. Subsequent to the decree the property was brought to sale on 24-2-1975 and sold for Rs. Rs.30,000/-. The sale was confirmed on 14-8-1975. The first respondent- judgement debtor executed a simple mortgage subsequent to the attachment before judgement, in respect of the building in question, in favmr of the State Bank of Hyderabad, Vijayawada, the 2nd respondent. O S No. 58/73 was the suit filed by the State Bank of Hyderabad in the court of the Subordinate Judge, Vijayawada in which a decree was granted against the first respondent-judgement debtor. Subsequent to the said mortgage in favour of the State Bank of Hyderabad the first respondent-judgment debtor executed two mortgage deeds in fivouor of the revision petitioner in respect of the same building: one on 25-6-71 for Rs. 45,000/- and the other on 28-6-71 for Rs. 25000/- The revision petitioner filed O.S. 119/75 on the file of the Sub-Court, Vijayawada and obtained a decree on 5-8-75 for Rs. I,24,291/~. Besides the a foresaid two creditors, some other persons including respondents 4, 5 and 6 obtained simple money decrees against the Judgement-debtor. E.P. 334/73 was the execution petition filed by the 3rd respondent (attaching judgement creditor) to realise the decretal amount of Rs. 4,000/- in O.S. No. 30/61. After the sale was effected and the proceeds deposited into court, the petitioner herein filed E.A. No. 1244/75 under Section 73 of the TRANSFER OF PROPERTY ACT, 1882. in E.P. No. 334/73 for payment of the balance amount in discharge of the two mortgage deeds after deducing the amount due to the 3rd respnde nt-decree-holders and the 2nd respondentState Bank of Hyderabad, the first mortgagee. The State Bank of Hyderabad filed E.A. No. 1244/75 in 3rd respondent's suit O.S. 30/61 for payment of the decretal amount due on the mortgage debt decreed in O S. No. 58/73. The 4th respondent P. Venkata Subbarao who obtained simple money decree in O.S. No. 56/70 on the file of the Sub-Court, Narsapur against the judgement-debtor and which was transferred to the Court of the J Additional Subordinate Judge, Vijayawada filed E. P. No. 64/75 for rateable distribution under Sec. 73 of the Civil Procedure Code. The 5th respondent G. Sambasivarao who obtained a simple money decree in O.S. No. 207/12 against the judgement-debtor filed E.A. No. 657/75 in the 3rd respondent suit O.S. No 30/61 for rateable distribution under Section 73 CPC. The 6th respondent, Andhra Bank, Vijayawada obtained a simple money decree in O.S. No. 1686/74 against judgement-debtor (R-I) and filed E.P, No. 82/75 for rateable distribution under Sec. 73 CPC. All these applications were disposed of by a common order by the learned I Additional Subordinate Judge on 17-8-1978. The application of the revision petitioner was dismissed on the ground that Sec. 73 of the Trans fer of Property Act was not attracted, but what was applicable was only Sec. 73 of the Civil Procedure Code under which in order to claim rateable distribution the application ought to have been filed before the sale proceeds we re received into court and as the application was filed on 23-8-75 and the sale confirmed on 14-8-75 the petitioner was not entitled to the relief sought. The Second ground for negativing the plea of the petitioner was that under the preliminary decree obtained by him on 5-8-71 time for redemption was granted the final decree was passed on 30-9-75) and so there was no executable decree. As the applications of respondents 4, 5 and 6 were filed prior to 14-8-75 they were granted rateable distribution. The plea of the 2nd respondentState Bank of Hyderabad-which filed E.A. No. 1244/75 that as a secured creditor it was entitled for full payment of the debt due under the mortgage deed was rejected. Aggrieved by the common order the petitioner in EA No. 1241/75 filed CRP 5063/78. State Bank of Hyderabad, Vijayawada which was the petitioner in E.A. No. 1244/75 filed CRP 227/81.

(3.) It is not in dispute that except the 3rd respondent Krishna Kumari who levied attachment before judgment in respect of the house property belonging to the first respondent-judgment debtor, there has been no other attachment by any of the respondents or other creditors. It is also clear that the State Bank of Hyderabad was the first mortgagee and the petitioner herein was the second mortgagee. Also not in dispute is the fact that by the date of the filing of the aforesaid applications seeking either rateable distribution under Sec. 73 CPC or priority payment of secured debts under Sec. 73 of the Transfer of Property Act, the decretal amount of Rs. 4,000/- due to the 3rd respondent Krishna Kumari under O.S. No. 30/61 was not paid and, therefore, the attachment before judgment levied by her subsisted.