SATYANARAYANA Vs. S VEKATESWARA RAO

JUDGEMENT

(1.) The petitioner, who is the decree-holder in O.S. No. 345 of 1980 on the file of the Subordinate Judge's Court Vijayawada obtained the decree against the common judgment-debtor and one Jaggaiab. The decree obtained by him is a simple money decree. He filed E.P. No. 120 of 1984 and brought the property for sale. The sale was held on two different dates, one is on 23-9-1985 and the other is on 25-1-1988 subject to mortgage. The second decree-holder who has obtained a simple money decree against the common judgment-debtor on 6-7-1987 in another suit filed E.P. No, 16/88 claiming rateables from out of the sale proceedings lying in E.P. No. 120 of 1984 on 4-2-1988. The sale proceeds of the sale dated 23-9-1985 were already adjusted by the decree-holder after obtaining the permission of the Court. Now we are concerned with the rateables that have been claimed with regard to the second sale that has been made by the party concerned. The second sale was held on 25-1-1988. One fourth of the amount was paid on 25-1-88 and the remaining amount was deposited on 5-2-1988. The second decree-holder filed the petition on 4-2-1988. The second decree-holder obtained an ex parte decree and the application to set aside that ex parte decree is still pending.

(2.) The First Additional Subordinate Judge, Vijayawada, found that the decree-holder who has not attached tbe property of the judgment debtor is also entitled to have the rateable distribution of the proceeds or the common judgment-debtor realised out of the sale of his properties held on 25-1-1988 under Section 73 of the Code of Civil Procedure.

(3.) The Court below proceeded on the assumption that on the date of 5-2-1988 i.e., by the date the entire sale amount was deposited, a claim has been made and so the second decree-holder is entitled for the rateables. The contention of the second-decree-holder was accepted by the lower Court.