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Andhra High Court · body

2010 DIGILAW 847 (AP)

Yadava Kamala Bai v. Bijjam Venkata Subbamma

2010-08-31

L.NARASIMHA REDDY

body2010
Judgment The petitioner filed O.S.No.350 of 2002 in the Court of Principal Junior Civil Judge, Proddatur against the 1st respondent for recovery of a sum of about Rs.87,000/-. She filed I.A.No.1033 of 2002, under Order XXXVIII Rule 5 C.P.C. and got attached before judgment, an item of immovable property, viz., a house. The suit was decreed ex parte on 02-09-2008. When the suit was pending, the attached property was brought to sale by the State Bank of India, from whom the 1st respondent is said to have obtained loan by mortgaging the property. After adjusting the loan amount, the bank kept with it, a sum of about Rs.1,00,000/-. The 2nd respondent filed O.S.No.27 of 2007 in the Court of Senior Civil Judge, Proddatur, against the 1st respondent for recovery of amount. He filed I.A.No.102 of 2007, under Order XXXVIII Rule 5 C.P.C., for attachment of the amount with the State Bank of India, and an order of attachment was passed. The petitioner filed I.A.No.420 of 2007, under Rule 8 of Order XXXVIII C.P.C., with a prayer to raise the attachment. Through its order dated 01-09-2008, the trial Court dismissed the I.A. Hence, this Civil Revision Petition. Sri Nagaraju Naguru, learned counsel for the petitioner submits that an item of immovable property owned by the 1st respondent was sold by the State Bank of India, even when the attachment before judgment ordered in I.A.No.1033 of 2002 in O.S.No.350 of 2002 was in force, and the remainder of the sale proceeds were got attached by the 2nd respondent, in a different suit, i.e. O.S.No.27 of 2007. He contends that, when the immovable property could not have been proceeded against during the subsistence of attachment, the same prohibition operates, vis--vis the sale proceeds also. Learned counsel for the 2nd respondent, on the other hand, submits that, in case the property was sold in contravention of the order of attachment, in I.A.No.1033 of 2002, the petitioner ought to have initiated steps, in accordance with law. He contends that, once the property was sold, the order of attachment does not operate against the sale proceeds. The petitioner, no doubt, got an item of property attached before judgment, by filing O.S.No.350 of 2002 against the 1st respondent. The attachment subsisted, till the suit came to be decreed, on 02-09-2008. He contends that, once the property was sold, the order of attachment does not operate against the sale proceeds. The petitioner, no doubt, got an item of property attached before judgment, by filing O.S.No.350 of 2002 against the 1st respondent. The attachment subsisted, till the suit came to be decreed, on 02-09-2008. However, that very item of property was brought to sale for redemption of a mortgage, in favour of the State Bank of India. In case, the sale is in contravention of the order of attachment, the petitioner could have assailed the same. However, she did not initiate any steps, even after she came to know about the sale, in the teeth of attachment. The 1st respondent is a debtor, not only to the petitioner, but also to the 2nd respondent. The latter filed O.S.No.27 of 2007. By the time the suit was filed, the balance of the sale proceeds for the property, which was owned by the 1st respondent and brought to sale by the 2nd respondent; remained in deposit with the Bank. The 2nd respondent obtained order of attachment before judgment, vis--vis the said amount. The claim of the petitioner for the said amount could certainly have been accorded priority, vis--vis the 2nd respondent, in case that very amount was attached before judgment, in O.S.No.350 of 2002. The attachment obtained by the petitioner was against an item of property. With the sale of that item, the petitioner virtually gets bereft of her rights, under the order of attachment, unless the sale itself is set aside. She did not initiate any steps in that direction. The sale proceeds or part of the same assumed an independent character, and are not at all subject to any restriction, on the basis of the attachment against the property. The amount becomes independent immovable property, owned by the 2nd respondent. Had the petitioner been vigilant, she would have obtained attachment against the amount, soon after the sale was conducted, in case there exists any impediment for her, to prevent or challenge the sale. The attachment obtained by the 2nd respondent, vis--vis the amount, was the first one. The petitioner do not have claim against that amount, and in that view of the matter, there was no basis for her to insist on raising of the attachment. The attachment obtained by the 2nd respondent, vis--vis the amount, was the first one. The petitioner do not have claim against that amount, and in that view of the matter, there was no basis for her to insist on raising of the attachment. The C.R.P. is dismissed, however, leaving it open to the petitioner to pursue her remedies, in accordance with law. There shall be no order as to costs.