SANNIDHI KRISHNA MURTHY Vs. PONIPIREDDY VENKATA RAO

JUDGEMENT

(1.) AS a similar point is involved in these cases, they are being disposed of by this common order. The petitioner in C. R. P. No. 2529 of 2009 is the father of petitioner in c. R. P. No. 2530 of 2009. Father filed o. S. No. 382 of 1997 and obtained decree for payment of money against Sri Gulipalli ganapathi Rao. He filed Execution Petition (EP) against Legal Representatives (LRs) of judgment debtor therein (respondents 2 to 5 herein ). Similarly, son filed O. S. No. 384 of 1997 against Sri Gulipalli Ganapathi Rao and obtained decree for payment of money. He filed E. P. No. 204 of 2007. In the meanwhile, first respondent herein filed suit being o. S. No. 103 of 1998 and obtained decree against the same judgment debtor. In e. P. No. 406 of 2005, he got the properties attached, which were sold in Court auction. Therefore, father filed E. A. No. 307 of 2008 and son filed E. A. No. 306 of 2008 in e. P. No. 406 of 2005 in O. S. No. 103 of 1998 under Sections 73 and 151 of the Code of civil Procedure, 1908 (CPC), for rateable distribution of sale proceeds of E. P. No. 406 of 2005. The Court of I Additional Junior civil Judge, Bheemavaram, by two separate orders passed on 31. 03. 2009, rejected the execution Applications filed by the father and son, aggrieved by which, these two Civil revision Petitions are filed.

(2.) LEARNED counsel for petitioners in both the cases places reliance on Narayan ganesh v. Fatma Daud MR 1952 Bombay 70, Manora Bai v. Sultan Bakat AIR 1968 a. P 113 and K. Srinivasa v. Noor Muhammad air 1970 Madras 504 and submits that, even if an application for rateable distribution of sale proceeds in another Execution Petition is filed after confirmation of sale, the petitioners are entitled for such rateable distribution. Per contra, learned counsel for first respondent places reliance on Division bench judgment of this Court in Lanka suryaprakash Rao v. Gadigatla venkaramanna Chowdary MR 1994 A. P 5 and submits that any decree holder seeking rateable distribution has to file such application prior to sale of assets of judgment debtor and after confirmation of sale, such application cannot be entertained.

(3.) SECTION 73 (CPC) reads as under. Section 73. Proceeds of execution-sale to be rateably distributed among decree-holders - (1) Where assets are held by Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decree for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons: provided as follows:-