HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION NO. 2538 OF 2011 Saturday, the Twenty Seventh day of August, Two Thousand and Eleven Between Kanna Venugopal Petitioner AND M/s. Margadarsi Chit Fund Ltd., Arundelpet, Guntur,Rep. by its Manager and others Respondents ORDER: The petitioner herein is the judgment debtor No.2 in O.S. No.152 of 2005, which was decreed against him and others on 8.4.2008 by the learned III Addl. Senior Civil Judge, Guntur. As the decreetal amount was not paid by the debtor debtors, who are five in number, the first respondent decree holder filed E.P. No. 312 of 2010 in OS No. 152 of 2005 seeking attachment, proclamation and sale of the E.P. Schedule immoveable property under 21 Rules 54, 64 and 66 C.P.C. to realize the E.P. amount. The said E.P. is filed to attach the property of judgment debtor NO.2 alone. It was the contention of the judgment debtor No.2 that out of the decreetal amount, he has already paid an amount of Rs.2.00 lakhs and the amount remaining unpaid is only Rs.1,46,145. In fact, the other application filed by the decree holder seeking arrest of the petitioner herein in E.P. No. 275 of 2008 was dismissed on 11.12.2009 and the E.P. Schedule property is already mortgaged to the Indian Overseas Bank as he has availed financial accommodation for construction of house and the said bank has got first charge and there is outstanding amount of Rs.22.00 lakhs payable by the judgment debtor to the said bank. The court below considering the respective contentions, held that the petitioner herein has failed to prove that he has availed financial accommodation for construction of house and he has also failed to show that the said property is under mortgage. Therefore, the court below attached the said property subject to mortgage, if any, in favour of the said bank. Therefore, it is for the petitioner to bring it to the notice of the court below to the effect that the said property is under mortgage to the Indian Overseas Bank. Once the petitioner is able to prove that the said property is under mortgage, it goes without saying that the bank shall have the first charge over the property for attachment and sale. As attachment itself is subject to the mortgage, if any, it is for the petitioner to establish before the court below that the property is under mortgage and it cannot be sold. Therefore, I do not see any infirmity legal or otherwise warranting interference in the order impugned. The Civil Revision Petition fails and is accordingly dismissed. No order as to costs. However, it is open for the petitioner to prove that the said property is under attachment of the bank. ___________________ Justice V.Eswaraiah August 27, 2011 MAS