A SESHURATHAM Vs. A JHANSI LAKSHML BAL

JUDGEMENT

(1.) the decree-holder in E.P.No. 73 of 1987 in O.S.No. 64 of 1970 on the file of the learned Surbordinate Judge, Gudivada filed this Civil Revision Petition against the order dated 7-10-1989 passed in E.A.No. 179 of 1989 allowing the application by declaring that the Decree Holder is not entitled to prosecute the decree for realisation of the decretal amount against the schedule property alone leaving Ac.6-97 cents of the 3rd Judgment Debtor and granting stay of all further steps in the E.P.

(2.) This revision petition raises an important question of law as to whether the Decree Holder is entitled to proceed against some of the charged properties only, leaving the other charged properties as per the whims and fancies of the Decree Holder.

(3.) Brief facts of the case are: The petitioner herein filed the suit O.S.No.64 of 1970 for maintenance and obtained a decree dated 30-12-1971. Under the said decree a charge was created on plaint A and B schedule properties for the decretal amount i.e. past and future maintenance. Respondents 2 and 3, the purchasers of the properties, were added as Judgment-Debtors 2 and 3. The second Judgment Debtor purchased an extent of Ac. 2-88 i.e. two items of the charged property in R.S.No. 80/1 and another extent of Ac. 0-28 cents in R.S. No. 80/2. The third Judgment Debtor purchased an extent of Ac. 6-97 in R.S. No. 80/3. The petitioner filed the present E.P. for the sale of two items of the charged property only which were purchased by the second Judgment Debtor i.e. second respondent, leaving the property purchased by the third Judgment Debtor i.e. third respondent herein. The first respondent, who is the wife of the second Judgment Debtor filed the present E.A.No. 179 of 1989 under Section 47 C.P.C. for a declaration that the petitioner is not entitled to prosecute the decree for realisation of the decretal amount against Ac. 2-88 cents in R.S.No. 80/1 alone, leaving Ac. 6-97 cents in R.S.No. 80/3 purchased by the third Judgment Debtor and that the petitioner has right only to claim recovery of the decretal amount in proportion to the extents of lands held by the respondents 2 and 3. The petitioner and third respondent filed separate counters opposing the same. Considering the entire material available on record and upon hearing the arguments of the learned counsel for the parties, the Court below allowed the E A. as stated above and consequently dismissed the E.P. filed by the petitioner. Aggrieved by that order in the E.A., the present revision petition is preferred by the petitioner-Decree Holder.