Andhra Pradesh High Court - Amravati
Pattisapu Anantha Bhaskara Murthy vs Madala Sri Venkata Ramana Murthy And 2 ... on 19 September, 2022
THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTI
CIVIL REVISION PETITION NO.3832 OF 2010
O R D E R:
This Civil Revision Petition is directed under Section 115 of C.P.C., against the order, dated 02.07.2010, in E.P.No.463 of 2001 in O.S.No.1018 of 2001 on the file of the Principal Junior Civil Judge Court, Ramachandrapuram, East Godavari District, where under the petition filed under Order XXI Rule 52 of the Code of Civil Procedure, 1908 against 1st J.Dr., directing the garnishee to effect attachment and to remit the same into the Civil Court Deposit was dismissed.
2. The facts behind the said E.P., filed by the Decree Holder were that, he filed O.S.1018/2001 on the file of I Addl. Junior Civil Judge Court, Rajahmundry, obtained the decree on 22.11.2004, which was got transmitted to Principal Junior Civil Judge Court, Ramachandrapuram, where the schedule property is situated. Even after passing the decree, the Judgment Debtors failed to pay the amount due under the decree. Previously, the Decree Holder filed E.P.11/2006 for sale of the immovable property of the J.Drs., but the same was not-pressed on 13.11.2007, because the property was auctioned by ING BVLNC, J CRP No.3832 of 2010 Page 2 of 9 Dt.19.09.2022 Vysya Bank, Ramachandrapuram Branch. An amount of Rs.3,63,385/- belongs to the 1st J.Dr., is lying in the custody of the bank vide Account No.741044000280 being the excess amount of auction bid amount. As such he is entitled to recover the E.P., amount of Rs.67,146/- from out of the balance amount lying with garnishee.
3. The Judgment Debtors 1 and 2 remained ex parte before the trial court.
4. The Garnishee-Bank i.e., ING Vysya Bank, Ramachandrapuram filed counter admitting the fact that it realized a sum of Rs.7,10,000/- in a public auction of the house property under SARFAESI Act, 2002 and still there is balance of Rs.3,63,385/- lying in their bank. While the matter stood thus, a suit notice was received from Senior Civil Judge Court, Ramachandrapuram in O.S.No.258/2007 by showing the bank as a party therein stating that the J.Dr., borrowed a sum of Rs.1,50,000/- on 08.11.2001 from Chandaila Veerasekhara Kumar by executing a registered simple mortgage deed and filed the suit for realization of Rs.3,63,000/- for passing a preliminary decree, and to pass a decree for the balance amount of unsatisfied decree against the garnishee-bank. Hence, the bank has to pay the amount towards preliminary decree to be BVLNC, J CRP No.3832 of 2010 Page 3 of 9 Dt.19.09.2022 passed by the Senior Civil Judge Court, Ramachandrapuram in respect of 2nd mortgage executed by the J.Dr., and no amount remains to withhold by the bank. Further, one Smt. Vaitla Satyavathi, D.Hr., in E.P.No.442/2007 in O.S.No.380/2001 on the file of Prl. Junior Civil Judge Court, Ramachandrapuram issued an attachment notice to withhold a sum of Rs.1,05,421/- towards the said decree debt.
5. On hearing both parties, the executing court held that as the 2nd mortgagee is a secured and preferential creditor and the mortgage runs along with the property, thus priority shall be given to the 2nd mortgagee and no amount is lying with the garnishee after deducting the sum of Rs.3,63,000/-, as such the D.Hr., is not entitled for attachment of the same.
6. No evidence, either oral or documentary, was adduced on behalf of both parties.
7. Heard Sri Y.S.Siva Bhami Reddy, learned counsel for the petitioner/decree holder, Sri N.Siva Reddy, learned counsel appearing for the judgment debtors and Smt. V.Dyumani, learned counsel appearing for the garnishee-bank.
8. The petitioner filed the execution petition against the respondents/judgment debtors 1 and 2 and also impleading BVLNC, J CRP No.3832 of 2010 Page 4 of 9 Dt.19.09.2022 the garnishee-bank as a party to the proceedings. The E.P., was filed under Order 21, Rule 52 of the Code of Civil Procedure with a prayer to direct the garnishee to effect the attachment and to remit the E.P., amount into the Court by way of Demand Draft or Cheque. The record shows that an amount of Rs.67,146/- was claimed towards the E.P., amount.
9. The garnishee opposed the E.P., on the ground that the property attached by the Court in this case on 22.10.2001 was sold by the bank in a public auction held on 05.10.2007 under the provisions of SARFAESI Act for Rs.7,10,000/- in order to secure the loan amount of Rs.3,18,000/- and after adjusting the loan amount, a sum of Rs.3,63,385/- is available with the bank as the amount payable to the judgment debtors and contended that the bank received a notice from Senior Civil Judge Court at Ramachandrapuram in O.S.No.258/2007 informing that the judgment debtors borrowed a sum of Rs.1,50,000/- on 08.11.2001 by executing a simple registered mortgage in favour of one Chandalla Veerasekhara Kumar and he filed a suit for recovery of an amount of Rs.3,63,000/- due under the said mortgage and therefore, no amount is available with the bank for effecting the attachment and to remit the amount as prayed for in this case.
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10. Admittedly, in this case the attachment order was effected on 22.10.2001 in I.A.No.965/2001 in O.S.No.1018/2001 on the file of I Addl. Junior Civil Judge Court, Rajahmundry field by the D.Hr., against the J.Drs., 1 and 2. Therefore, the mortgage said to be executed by the J.Drs., 1and 2 in favour of Chandalla Veerasekhara Kumar on 08.11.2001 is subsequent to the attachment effected on 22.10.2001 in I.A.No.965/2001 in O.S.No.1018/2001.
11. The trial Court in its order mentioned that the garnishee contended that one Smt. Vaitla Satyavathi, a decree holder in E.P.No.442/2007 in O.S.No.380/2001 on the file of Prl. Junior Civil Judge Court, Ramachandrapuram obtained an attachment order against the garnishee to withhold a sum of Rs.1,05,421/- towards the decree amount and to remit the said amount to the Court.
12. The learned trial Court dismissed E.P., in the case on the ground that mortgagee is a secured creditor and the mortgage runs along with the property and the secured creditor shall be given priority as he filed the suit against the J.Drs., and garnishee was made as party to the proceedings and therefore, no amount will remain with the garnishee after deducting the amount payable in the suit filed by the mortgagee. BVLNC, J CRP No.3832 of 2010 Page 6 of 9 Dt.19.09.2022
13. The learned counsel for the revision petitioner submitted that the trial Court while dismissing the execution petition on 02.07.2010 filed by the petitioner, on the same day has allowed the execution petition filed by said Vaitla Satyavathi in E.P.442/2007 in O.S.380/2001 on the very same day, which was also filed under Order 21, Rule 52 of CPC for an amount of Rs.1,05,000/-, wherein the same garnishee pleaded about the mortgage in favour of Chandalla Veerasekhara Kumar and the suit filed by him.
14. The petitioner filed copy of the order dt.02.07.2010 in E.P.442/2007 in O.S.380/2001 on the file of Prl. Junior Civil Judge, Ramachandrapuram. It shows that the said E.P., was filed by Vaitla Satyavathi against the same judgment debtors and garnishee for an amount of Rs.1,05,000/- under Order 21, Rule 52 of CPC and in that execution petition the garnishee has taken the same plea as raised in the case on hand.
15. The trial Court repelled the contention of the garnishee-bank in the said E.P., on the ground that the mortgage transaction is subsequent to the date of attachment and as such it is not binding on the decree holder and as per Section 64 of the Code of Civil Procedure private alienation of the property after attachment is void and that this fact was not BVLNC, J CRP No.3832 of 2010 Page 7 of 9 Dt.19.09.2022 denied by the garnishee and the trial Court accordingly allowed the said E.P., filed under Order 21, Rule 52 of CPC and made the attachment absolute.
16. In the case on hand, there is no dispute about the fact that attachment in this case was effected on 22.10.2001 in I.A.No.965/2001 in O.S.No.1018/2001 filed by the decree holder against the judgment debtors. The alleged mortgage in favour of Chandalla Veerasekhara Kumar was on 08.11.2001. Therefore, it is subsequent to the date of attachment order of the Court. Section 64 of the Code of Civil Procedure deals with private alienation of property after attachment.
Section 64 of C.P.C., reads as follows:-
(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.
Explanation-For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.
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17. In the case on hand, admittedly, the mortgage was after attachment effected in the case. Hence, any payment to the judgment debtors of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
18. In the light of above facts and law, the order of the trial Court is liable to be set aside as the trial Court committed irregularity by dismissing the execution petition contrary to the facts and law in the case.
19. In the result, the revision petition is allowed and the order dt.02.07.2010 in E.P.No.463 of 2001 in O.S.No.1018 of 2001 on the file of Prl. Junior Civil Judge Court, Ramachandrapuram is set aside, directing the garnishee-bank to deposit the E.P., amount into the Court by way of D.D., or cheque to the credit of the suit account.
There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
__________ BVLNC, J 19th September, 2022 dvsn BVLNC, J CRP No.3832 of 2010 Page 9 of 9 Dt.19.09.2022 HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CIVIL REVISION PETITION NO.3832 OF 2010 Date:19.09.2022 DVSN