IN THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE,

Present: Sri I.SRINIVASA MURTHY, Principal Senior Civil Judge, Gudivada.

Wednesday, this the 5th day of August, 2020.

EA.No.58/2020 in EA.04/2020 in OS.141/2018 Between

Vemulapalli Purna Chandra Rao, S/o.Balarama Krishaiah, Hindu, Aged 58 years, Properties, …Petitioner/ R/o.Komaravolu, Pamarru Mandal, Krishna 3rd party District.

And

1. Kollareddy Ravi, S/o.Ramesh Reddy, Hindu, aged 42 years, Busienss,R/o.Pamarru village, Pamarru Mandal, . 2. Adusumilli Naga Lakshmi, W/o. late Anil Kumar, C/o.ASR Anjaneyulu, Hindu, aged 34 years, House wife, R/o.D.No.1-603, RTC colony, Beside Govt. School, Gudivada, Krishna District. 3. Adusumili Vani, W/o.Seetharamaiah, Hindu, aged 61 years, House wife, R/o.D.No.1/63, Pedamaddali village, …..Respondents. Pamarru Mandal, Krishna District (JDrs)

This petition has come up on 15.07.2020 for final hearing before me in the presence of Sri R.Ravi Kumar, advocate for petitioner and of Sri S.V.Pandurangarao, advocate for 1st respondent, and of Smt. G.Kamalamrutham parte and upon perusing the material on record and the matter having stood over for consideration till this day, this Court has delivered the following:

ORDER

This petition is filed by a 3rd party under section 73 of CPC to rateably distribute the balance amount of the sale proceeds from the estate of the deceased between the petitioner and the 1st respondent/

DHr.

2. The case of the petitioner is as follows: He filed OS.12/2019 on the file of the court of XI-Additional District and Sessions Judge,

Gudivada against respondents 2 and 3/JDrs herein for recovery of 2

money due under promissory note executed by the husband of the 2nd respondent and the son of 3rd respondent. After receiving summons from the court, respondents 2 and 3 appeared before the court and after negotiations, the matter was compromised before Lok-Adalat agreeing to pay an amount of Rs.50,00,000/- to the petitioner from the estate of deceased on or before 21.01.2020 towards full and final settlement of the suit claim. An award was passed on 08.01.2020 on which date respondents 2 and 3 paid Rs.2,00,000/- and the remaining amount of

Rs.48,00,000/- is to be paid on or before 21.10.2020. Respondents 2 and

3 did not choose to pay the balance amount of Rs.48,00,000/- within the time stipulated in the award. Petitioner filed EP in the court of Hon'ble

XI-Additional District and Sessions Judge, Gudivada vide GL.No.319, dt.29.01.2020.

ii) Recently petitioner came to know that respondents 2 and 3 are heavily indebted to several others and their property was sold away under SARFAESI Act and that 1st respondent/DHR got attached the remaining sale proceeds and the same was sent to this court after deducting the amount due to the Indian Bank, Pamarru. 1st respondent/DHr is also an unsecured creditor, who obtained a money decree against respondents 2 and 3 and, therefore, the amount lying in the court are to be rateably distributed between the 1st respondent and the petitioner under section 73 of CPC. Hence, the petition.

3. This court heard both sides though the counter was not filed by other side.

4. Now the point for consideration is whether the present petition is maintainable under section 73 of CPC.

POINT: 3

5. The facts of the case are that 1st respondent/DHR filed

OS.141/2018 against respondents 2 and 3 and obtained a money decree on 16.08.2019 in OS.141/2018 and he also got attached the house property of the deceased borrower before judgment. Later the said property was sold by Indian Bank, Pamarru under SARFAESI Act and later the remaining sale proceeds lying with Indian Bank, Pamarru were got attached by R1/DHr and later he filed a petition in EA.233/2019 in

OS.141/2018 to send for the amount. Accordingly an amount of

Rs.6,80,000/- was received by this court vide challan No.402, dt.13.11.2019. Now an amount Rs.6,80,000/- is lying to the credit of the suit. Petitioner filed the present petition for rateable distribution of the said amount.

6. According to the petitioner, he obtained a Lok-Adalat award in

OS.12/2019 on 08.01.2020 against respondents 2 and 3 and he also filed EP in GL.No.319, dt.29.01.2020. No copy of the said EP is filed into court to show that such EP is filed by the petitioner or not. Only Lok-

Adalat award is filed along with the present petition which shows that on

08.01.2020 the award was passed. Therefore, there is no material to show that the petitioner filed any EP on 29.01.2020 in GL.319.

Moreover, even according to the petitioner the said EP was not numbered by the time of filing of the present petition.

7. Even if it is assumed that petitioner filed the said EP on

29.01.2020, still the present petition is not maintainable under section

73 of CPC. A plain reading of section 73 of CPC would reveal that in order to claim rateable distribution of assets, the petitioner has to satisfy the requirement that before receipt of such assets by the court, the petitioner must have made an application to the court for execution of the decree for payment of money passed against the same judgment 4

debtor and he did not obtain satisfaction of the decree. In the present case, even according to the petitioner he filed EP only on 29.01.2020, which is not even numbered. The record shows that the assets were received by this court even much prior to the date of filing of the EP by the petitioner. As already stated above, the amounts were received from

Indian Bank, Pamarru on 13.11.2019 itself, by which date petitioner has not filed any EP even according to his own petition. Therefore, the mandatory requirement under section 73 is not satisfied by the petitioner.

8. The learned counsel for the petitioner relied on Lakshman

Swarup Om Prakaswh vs. Union of and others1 and

Kanakam Srinivasa Rao vs. Ganga Venkateswara Rao and another2 and contended that the petition is maintainable. The facts in the said decisions are totally different from the facts on hand and those decisions are not all applicable to the facts of the present case.

9. In fact, in Achuri Narayana (died) by LR Vs.Mamidi

Eshwaraiah3, a Division Bench of Hon'ble High Court clearly held that in order to be entitled for rateable distribution, a decree holder must not only show that he has filed an execution petition before the assets held by a court were received, but also he must satisfy the court that he has not obtained satisfaction of the decree.

10. In the present case, the execution petition was not filed by the petitioner before the assets held by this court were received. Since this mandatory requirement is not satisfied, the present petition is not at all maintainable in view of the said decision. Point is answered accordingly.

1 1997 (7) SCC 245 2 AIR 2003 AP 38 3 2017 (1) ALD 207 (DB), 5

11. In the result, the petition is dismissed as not maintainable. No costs.

Dictated to Stenographer (Gr.III), transcribed by her, corrected and pronounced by me in the open court, on this 5th day of August, 2020.

Sd/-I.Srinivasa Murthy Principal Senior Civil Judge, Gudivada. Appendix of Evidence NIL

Sd/-I.Srinivasa Murthy PSCJ/GDV.