THE HONOURABLE SRI JUSTICE A.GOPAL REDDY CRP No.3231/2010 Date of Order: 1-7-2011 Between: Cheeday Vamsi Priya, W/o Suresh, Bhimavaram, represented by her General Power of Attorney Holder, Samineni Sitarama Rao, Jaggaiahpet, Krishna District. ..Petitioner and 1. Gurijala Venkateswaralu and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY CRP No.3231/2010 Oral order: The revision petitioner herein is the respondent No.1 in IA No.1873/2010 in AS (SR ) No.375 (GR36)/2010 on the file of II Additional District Judge, Vijayawada. The revision petitioner herein filed OS No.247/2005 before the Court of Senior Civil Judge, Bhimavaram, and obtained a decree against the respondents 2 and 3 herein. The revision petitioner herein also filed EP No.25/2007 and got attached an amount of Rs.1,39,737/-. The first respondent herein, namely, Gurijala Venkateswarlu, claiming to be the second mortgagee of the respondents 2 to 4 herein filed OS No.2/2007. On dismissal of the suit, he filed AS No.270/2007 on the file of II Additional District Judge, Vijayawada. Pending the said appeal, the first respondent herein filed EA No.3/2008 before the Senior Civil Judge, Nandigama, for raising the attachment of the amount lying with the fourth respondent herein ie., Andhra Bank, Jaggaiahpet. The fourth respondent herein, who is the first mortgagee, auctioned the property of the respondents 2 and 3 herein in a public auction and realized its debt and an amount of Rs. 5,05,877/- is lying with them. On dismissal of EA, the first respondent herein filed AS (SR) No.375/2010 before the II Additional District Judge, Vijayawada, stating that he being the mortgagee will have a preferential right to the balance amount lying to the credit of Andhra Bank and the first respondent tried to take away the attached amount and therefore the proceedings in EP should be stayed. The lower appellate court without giving any reasons stayed the proceedings in EP No.25/2007 on the file of Senior Civil Judge, Nandigama stating that if the respondents 1 to 3 withdrew the amount from the fourth respondent, the purpose of the appeal would fail. It is nowhere stated in the affidavit filed by the appellant seeking stay of EP that pending suit he got an attachment of the balance amount of the sale proceeds lying with the Andhra Bank nor in the suit filed by him he obtained such an attachment. On dismissal of the suit by the trial court, naturally his claim petition has to be dismissed and as on that date he has no claim over the suit amount. The order passed by the lower appellate court without considering the above facts is not at all justified and the same is liable to be set aside. Learned Counsel or the respondent No.1 now contends that the appeal filed by him against the dismissal of OS No.2/2007 has been partly allowed and a decree has been passed in his favour. If that be the case, he is at liberty to proceed with as per the decree passed in his favour. The Civil Revision Petition is accordingly allowed setting aside the impugned order dt.7-5-2010 passed by the lower appellate court and the lower appellate court shall dispose of the appeal as expeditiously as possible. No costs. _______________ A.GOPAL REDDY, J. Dt.1-7-2011 kmr