IIN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1635 OF 2010 Between: Bhavanasi Yuga Narayana Murthy and another …Petitioners A n d Gourireddy Satish Kumar Reddy and two others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1635 OF 2010 ORDER: This civil revision petition is directed against the order dated 26-11-2009 in E.A.No.24 of 2009 in E.P.No.14 of 2007, on the file Senior Civil Judge, Sathupalli, wherein the said application filed by the advocate-receiver under Order XXI Rule 58 CPC, was dismissed. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Perused the record. 3. The first respondent herein filed the suit against the second respondent for recovery of certain amount and the suit was decreed. The first respondent filed E.P.No.14 of 2007 for realization of the decree debt by sale of the EP schedule property and the building bearing No.7-55, Satram Bazar, Wyra. It is sated that the second respondent-judgment debtor filed I.P.No.14 of 2008 before the Senior Civil Judge, Khammam impleading the first respondent and 13 others and the EP schedule property was shown as item ‘C’ in the IP schedule. The claim petitioner was appointed as receiver in respect of ‘C’ schedule property in the IP. The claim petitioner alleged that the decree holder in spite of having knowledge of EP proceedings has been continuing with the EP. According to the claimant, the market value of the property is more than Rs.25 lakhs, but the auction was held for Rs.11,20,000/-. 4. The decree holder filed counter opposing the petition and contending that the petition is not maintainable, as the auction purchaser was not impleaded as a party and the claim petitioner’s remedy, if any, is only to send for the amount to the credit of the IP, but not to seek setting aside of the sale. On a consideration of the material available on record, the trial Court dismissed the application since the auction purchaser was not made a party to the said proceedings. Aggrieved by the same, the receiver did not file any revision petition. The present civil revision petition is filed by third parties who were stated to be creditors of the judgment debtor after obtaining leave of the Court in CRP.MP.No.944 of 2010. The petitioner did not, however, implead the official receiver even as a proforma respondent, though according to them the official receiver is not taking any steps to protect the interest of the creditors. According to the petitioners, the schedule property is part of item ‘C’ of the schedule in the IP filed by the judgment debtor and, therefore, the same cannot be sold away at the instance of one of the creditors to the detriment of the other creditors as IP.No.14 of 2008 is still pending. The official receiver was appointed on 06-09-2008 and is said to have received the warrant on 04-03-2009, but, however, it is stated that possession was taken under a panchanama dated 17-10-2008 in pursuance of oral instructions given by Court on 14-10-2008. As rightly pointed out by the execution Court when the warrant was received on 04-03-2009, it is not understandable as to how the official receiver took possession under a panchanama on 17-10-2008. The sale was conducted on 09-02-2009 which is subsequent to appointment of the Official Receiver on 06-09-2008, but prior to the receipt of the warrant on 04-03-2009. The auction purchaser deposited an amount of Rs.2,81,250/- on the date of auction and deposited the balance amount of Rs.8,43,750/- on 20-02- 2009, besides Rs.56,250/- towards stamp duty for issuance of sale certificate. Thus, the payment of the amount by the auction purchaser was complete even by the date of receipt of the warrant by the Official Receiver. When the third party interest has thus been created in favour of the auction purchaser, the Official Receiver ought to have impleaded him as a party respondent to the claim application filed by him, but he did not do so. As rightly pointed out by the execution Court, the very claim application is not maintainable since the auction purchaser is not made a party to it. Whether or not the property already vested in the Official Receiver even by the date of the sale is a question that necessarily arises for consideration, but the impugned order does not answer the same. It is, therefore, considered a fit case where the matter has to be remanded to the execution Court for fresh disposal after impleading the auction purchaser, the third respondent herein, as a party and conducting a regular enquiry that is required while dealing with an application under Order XXI Rule 58 CPC. Inasmuch as the petitioners are alleging that the Official Receiver is not taking steps to protect the interest of the creditors, it is open to the petitioners herein to come on record in E.A.No.24 of 2009 and participate in the proceedings. 5. In the circumstances, the impugned order is set aside and the matter is remanded to the execution Court for fresh disposal according to law. 6. In the result, the civil revision petition is disposed of. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 01st March, 2011 Lrkm.