IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 10367 of 2008 Between: 1 Smt.Pokala Rajeswaramma W/o.Late Pokala Krishna Murthy Property R/o.Door No.6-21-41,Anjaneyavagu Centre Kothapet,Vijayawada-520001 2 Smt.I.Ahalya W/o.I.Ananda Rao R/o.Srirambhavan, High School Road Behind M.G.Cloth market,Chirala,Prakasam District 3 Pokala Krishna Sai D/o.P.Chandra Sekhar Minor Mother`s Protection 4 Pokala Sai Prasanthi D/o.P.Chandra Sekhar Minor Mother`s Protection, Petitioners 3 and 4 being minors rep.by their Mother and natural guardian Smt.Pokala Devi W/o.P.Chandra Sekhar, aged 34 years, R/o.6-21-41, Anjaneyavagu Centre,Kothapet, Vijayawada-520001 ..... PETITIONER(S) AND 1 Indian Bank ,rep.by its Branch Manager,Mogalrajpuram Branch,Vijayawada-520010 2 The Authorised Officer,Indian Bank Circle,Office Mogalrajpuram Branch,Vijayawada-520010 3 Pokala Chandra Sekhar S/o.Krishna Murthy R/o.C/o.Swetha Studio, Vijayawada-520001 4 Smt.K.Bala Tripura Sundari W/o.K.Sai Vara Prasad R/o.K.G.G.Prasad Road, Kanuru, Vijayawada Krishna District .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the impugned action of Hon`ble Recovery Tribunal, Visakhapatnam in proceeding further with enquiry inSA.No.94 of 2007 pending disposal of OP.No.139 of 2007 on the ﬁle of the learned II Additional District Judge, Vijayawada without proper declaration of title over the SA Property as illegal, and violative of principles of natural justice and consequently direct the Hon`ble Recovery Tribunal, Visakhaptnam to defer with further enquiry in SA.No.94 of 2007 till the disposal of OP.No.139 of 2007 and pass Counsel for the Petitioner: MR.V.S.R.ANJANEYALU Counsel for the Respondent : . FOR R MR.AMBADIPUDI SATYANARAYANA FOR R07.06.08,VAK-1&2 The Court made the following : O R D E R: This Writ Petition has been ﬁled by the petitioners who are four in number with a prayer to issue a Writ of Mandamus declaring the action of Debt Recovery Tribunal, Visakhapatnam in proceeding with an enquiry in S.A.No.94 of 2007 pending disposal of O.P.No.139 of 2007 on the ﬁle of II Additional District Judge, Vijayawada as illegal and violative of principles of natural justice. Petitioner Nos.1 and 2 claim to be the and daughter of and whereas petitioner Nos.3 and 4 claim to be grand children of Late Pokala Krishna Murthy. According to them, the properties mortgaged to 1st respondent by Pokala Chandra Sekhar are the ancestral properties and therefore they got 1/5th each. They ﬁled suit for partition as indigent persons. They also sought for relief for declaration that the decree obtained by 1st respondent in respect of the suit property as null and void. It appears 1st respondent-Bank initiated proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for realization of the mortgaged debt. The petitioners ﬁled an appeal being S.A.No.94 of 2007 before the Debt Recovery Tribunal, Visakhapatnam. The instant writ petition has been filed with a prayer stated supra. An interim order came to be passed on 2.5.2008. The 1st and 2nd respondents received notice and entered appearance through a counsel and ﬁled WVMP.No.1549 of 2008 to vacate the interim order passed on 2.5.2008. When the vacate stay petition came up for hearing, with the consent of the parties, the writ petition is taken up for ﬁnal hearing. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing on behalf of R1 and R2. Learned counsel appearing for the petitioners submits that initiation of proceedings by 1st respondent while the suit is pending before the Civil Court for partition and separate possession of the shares of the petitioners is not legal and proper and therefore the proceedings before the Debt Recovery Tribunal in S.A.No.94 of 2007 are required to be stalled. Learned Standing Counsel for R1 and R2 submits that the petitioners having ﬁled the suit as indigent persons failed to secure any interim orders and therefore they cannot be permitted to stall the proceedings for realization of the mortgage decree. A fact remains that the petitioners ﬁled suit as indigent persons for partition and separate possession of their shares. If the petitioners intend to establish their claim over the mortgage property, they have to make necessary application before the Civil Court. In the given facts and circumstances of the case, invoking jurisdiction under Article 226 of the Constitution of India is misconceived. Accordingly, this writ petition is dismissed. However, the petitioners are at liberty to make necessary application before the Civil Court seeking stay of execution of the realization of the mortgage debut. No costs. 25th August, 2008. (B.Seshasayana Reddy,J) tnb ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.10367 OF 2008 25T H AUGUST, 2008.