THE HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.3075 of 2007 ORDER: This revision petition under Article 227 of the Constitution of India is directed against the order dated 16.04.2007 passed by the Senior Civil Judge, Avanigadda dismissing I.A.No.195 of 2007 in I.P.No.15 of 2003 filed for summoning the proposed witness, namely; Branch Manager, Krishna District Co-operative Credit Bank Limited, Koduru Branch, Koduru, for producing the documents, namely; original of the registered mortgage bond dated 31.07.1989 vide document No.2840/89 executed by the first respondent and the original of the mortgage register relating to the said bond. The fifth respondent-creditor filed the above I.P against respondents 1 to 4 and the petitioner herein. The fifth respondent examined himself as R.W.1 and also examined two more witnesses as R.Ws.2 and 3. At that stage, the petitioner herein, who stated to have purchased the schedule property from respondents 1 to 4 under a registered sale deed dated 20.03.2003 vide document No.353/03, filed the above I.A. According to the petitioner, apart from the schedule property purchased by him, the first respondent is also having land in an extent of Ac.3.92 cents in R.S.Nos.1086/1, 1090/1 and the same was mortgaged with Koduru P.A.C.S for Rs.20,000/- under registered mortgage deed dated 31.07.1981 vide document No.2840/89. As the said land is in possession of the first respondent, the same is sufficient to discharge the debt. Therefore, in order to show that the first respondent is having sufficient property, after excluding the property purchased by the petitioner, the petitioner in the main proceedings colluded with the first respondent and filed the above I.P. It was stated that the fifth respondent filed Encumbrance Certificate with regard to the property mortgaged to Koduru P.A.C.S. The learned trial Judge dismissed the I.A holding that the fifth respondent filed I.P against respondents 1 to 4 and the petitioner as a creditor of ‘B’ schedule property, which is in possession and enjoyment of respondents 1 to 4 only; that the fifth respondent is only relative of respondents 1 to 4; that the first respondent is the owner and respondents 2 to 4 being the members of the joint family they are liable to discharge the debt; that respondents 1 to 4 transferred the ‘B’ schedule property in favour of the fifth respondent with a dishonest intention to defeat or delay the debts due by them to the petitioner and that since the property has been mortgaged with the bank, the bank will have a first charge over the property and after discharge of the said mortgage, if any amount still remains, the creditor is entitled to receive the same. Sri V.S.R.Anjaneyulu, learned counsel for the petitioner contends that the finding of the Court below that respondents 1 to 4 transferred the ‘B’ schedule property in favour of the fifth respondent, who is their relative, with an intention to defeat or delay the debts due by them to the petitioner/creditor is not at all warranted and it can be decided only in the I.P. He further contends that in order to prove that the first respondent has some more properties, mortgaged with Krishna District Co-operative Credit Bank Limited, Koduru Branch, the examination of Branch Manager and production of documents is necessary. I do not see any merit in the above said contention of the learned counsel for the petitioner for the simple reason that when respondents 1 to 4 transferred ‘B’ Schedule property in favour of the petitioner, respondents 2 to 4 are jointly and severally liable to pay the ‘A’ schedule debt, and hence to adjudicate the first respondent as an insolvent, it is for him to establish that the said sale deed was executed only to defraud the creditor and to declare the said sale deed as null and void, and then only he can proceed against the property. Since the creditor cannot proceed against the property mortgaged with the bank, as the bank will have a first charge over the property, and after discharge of the said mortgage, if any amount still remains, the creditor is entitled to receive the same. Therefore, the Court below rightly dismissed the I.A and the impugned order does not call for any interference. The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J Date: 18.11.2010 va