G RAMALINGA SWAMY Vs. N KONDALU

JUDGEMENT

(1.) THE first respondent filed O. S. No. 6 of 2000 in the Court of the Junior civil Judge, Macherla against the second respondent for recovery of certain amount. The suit was decreed on 05. 09. 2000. After the decree became final, he filed E. P. No. 121 of 2000 and, in the process, an item of immovable property was brought to sale. The sale proceeds of Rs. 82,500/- were deposited into the Court.

(2.) THE petitioner filed O. S. No. 126 of 2000 against the second respondent in the same Court for recovery of a sum of Rs. 64,000/ -. That suit was decreed on 19. 12. 2000. During the pendency of the suit itself, he is said to have got attached the same item of immovable property under Order 38 Rule 5 C. P. C. On coming to know that the property was sold and sale proceeds were deposited, the petitioner filed E. A. No. 198 of 2001 under Section 73 C. P. C. He wanted the rateable distribution of the sale proceeds, along with the first respondent. The application was opposed by the first respondent. Through its order, dated 19. 01. 2005, the executing Court dismissed the E. A. Hence, this revision.

(3.) SRI K. V. Subba Reddy, the learned counsel for the petitioner, submits that the view taken by the executing Court that the claim of the petitioner cannot be accepted, since no E. P. was filed, is untenable in law. Placing reliance upon a judgment of this Court in JAGADISH VAISHNAV vs FARPOS LEADING CATEROR, 2002 4 ALT 718, he submits that once there exists an attachment in favour of the petitioner, filing of E. P. was not necessary at all. He submits that the petitioner is entitled to be paid rateable amount from out of the sale proceeds.