HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.1569 of 2008 Dated : 17.06.2010 Between : Kommuri Veeranjaneyulu ….. Petitioner a n d Tamanna Lakshmi Sulochana & another ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.1569 of 2008 ORDER: This civil revision petition is directed against the order of the Principal Junior Civil Judge, Avanigadda, in E.A.No.626 of 2007 in E.P.No.80 of 2003 in O.S.No.74 of 2001 dated 04.03.2008 holding the claim petition to be maintainable and posting the same for recording the evidence of both the parties in order to decide the rights of the parties. The first respondent herein filed the claim petition contending that the execution petition schedule property can be brought to sale only subject to the mortgage debt in her favour which claim was contested by the revision petitioner herein alleging that a similar petition was earlier dismissed on contest which was carried in revision in Civil Revision Petition No.2234 of 2007, which was dismissed on 02.11.2007. It was further contended that an award was passed by the Lok Adalat between the decree holder and judgment debtor and the judgment debtor never stated that the schedule property was subject to alleged mortgage. It was also stated that apart from prolonged silence of the claim petitioner, she being a secured creditor, her rights would not have been in any way affected by the same. The Executing Court in the impugned order observed that in Civil Revision Petition No.2234 of 2007 while dealing with the earlier petition under Section 47 and Order XXI Rule 66 of the Code of Civil Procedure, the High Court had observed that the claimant/petitioner ought to have presented an application under Order XXI Rule 58 of the Code of Civil Procedure if she felt that she had independent right in respect of the property. The Executing Court considered that in the light of the said observation of the High Court, the petition cannot be considered to be not maintainable and therefore passed the impugned order. The grievance of the decree holder in this civil revision petition is about the Executing Court not considering the decision in Kabidi Venku Sah v. Syed Abdul Hai and another[1]. Due to there being no direction by the High Court in Civil Revision Petition No.2234 of 2007 to file any claim petition, the claimant not in actual possession of the property could not have maintained the claim petition and therefore the decreeholder desired the order to be revised. Sri Y.Ramatirtha, learned counsel for the revision petitioner, strenuously reiterated the contentions of the decree holder and again referred to the decision reported in Kabidi Venku Sah’s case. The precedent relied on is a case where a mortgagee objected to attachment of a house property and where there was a mortgage decree, execution sale and delivery of property earlier, the Apex Court observed that the mortgagee is a secured creditor and any attachment effected after the mortgage can only be subject to mortgage. It was further observed that the mortgagee had no interest in the equity of redemption on the date of the judgment and could not therefore have had any objection to that right of the mortgagor being attached by the first respondent. It was also noted that the judgment creditor could bring the property to sale only subject to the mortgage so long as it subsists. As the right of the mortgagee was thus not affected at all, the Apex Court ruled against the mortgagee in that case. In the present case what the claim petitioner seeks is only to effect any sale in execution subject to the mortgage in her favour and not against the decree holder proceeding against the equity of redemption, which the mortgagor has in the property. The decision, therefore, is clearly distinguishable. In Civil Revision Petition No.2234 of 2007 arising out of the petition filed by the claim petitioner under Order XXI Rule 66 and Section 47 of the Code of Civil Procedure, the learned Judge observed that Rule 66 of the Code of Civil Procedure being purely procedural and Section 47 of the Code of Civil Procedure being a provision for adjudication of disputes between the parties to the decree, such a petition was untenable and holding that third parties to a decree do not have any right to present such an application, it was positively observed that the claim petitioner, if she felt that she had an independent right in respect of the property, she ought to have presented an application under Order XXI Rule 58 of the Code of Civil Procedure. Incidentally, of course, the learned Judge had also noted the finding recorded by the Executing Court on merits to the effect that the claim petitioner failed to prove the existence of mortgage in her favour. It is in the light of the direction of this Court keeping it open to the claim petitioner to work out her remedies in accordance with law that the present petition was filed and the learned Judge directed there itself that any such proceeding so instituted shall be adjudicated on its own merits uninfluenced by any observations made by the Executing Court in E.A.No.102 of 2004. If so, the filing of the present petition cannot be considered to be ex facie barred in fact or in law. Sri Y.Ramatirtha, learned counsel for the petitioner, also contended that by now any mortgage alleged by the claim petitioner is patently barred by time, apart from the claim petition being untenable in view of the positive findings in E.A.No.102 of 2004 about want of proof of mortgage, in favour of the claim petitioner, which finding has become final. These questions have to be adjudicated on merits by the trial Court as already directed by this Court in the earlier revision petition and no expression of opinion should be made on such issues herein in a restricted consideration of the civil revision petition. There appears nothing improper or unreasonable in the impugned order deciding to continue to enquire into the petition on merits after recording the evidence of both the parties and therefore the civil revision petition has to fail. Accordingly, the civil revision petition is dismissed without costs and again it is stated by way of caution that any observations made in this order shall not influence the adjudication of the claim petition on merits. ______________________ G.BHAVANI PRASAD, J 17th June, 2010 SUR [1] AIR 1984 Supreme Court 117