IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.718 of 2008 BETWEEN: M.G. Vijayalakshmi and two others. ... PETITIONERS AND T.G. Anantha Ramesh and two others. ...RESPONDENTS Counsel for the Petitioners: MR. O. MANOHAR REDDY Counsel for the Respondent Nos.2 and 3: MR. T.S. ANAND The Court made the following: ORDER: The petitioners in E.A.No.934 of 2006 in E.P.No.120 of 2003 in O.S.No.341 of 2001 are the revisions petitioners. They are aggrieved by the order of the learned Principal Junior Civil Judge, Adoni dated 04.02.2008 dismissing their application for rateable distribution under Section 73 of the Code of Civil Procedure. 2. The facts in brief are that the petitioners 1 to 3 are the decree holders in O.S.Nos.341, 339 and 340 of 2001 respectively and the respondents 2 and 3 are decree holders in O.S.No.208 and 214 of 2003 respectively. All the said decrees are against the first respondent herein. The said five decree holders, who have obtained decrees against the first respondent, are, therefore, agitating for recovery of respective decretal amount. It is an admitted case that there was an I.P.No.41 of 2001 filed by the first respondent before the Principal District Judge, Kurnool and an Official Receiver was appointed therein. The said official receiver had auctioned the movables in the house of the first respondent and had retained the sale proceeds. It is the case of the petitioners that they are entitled to rateable distribution to the said sale proceeds along with other decree holders, who are arrayed as above. The respondents 2 and 3 claim that the respective amounts have been called for and sent to the respective EP’s filed by the decree holders separately and the said amounts are credited to the respective EP’s by virtue of the orders of the Court and consequently, they cease to be the assets of respondent No.1 – judgment debtor. The Court below has considered the rival contentions and agreeing with respondents 2 and 3 that the aforesaid amounts are no more assets of the first respondent – judgment debtor and consequently dismissed the petitioners’ E.A.No.934 of 2006. Questioning the same, the present revision is preferred. 3. Heard Mr. O. Manohar Reddy, learned counsel for the petitioners and Mr. T.S. Anand, learned counsel for respondents 2 and 3. 4. From the facts, as above, it is evident that three separate decree holders figured in E.A.No.934 of 2006 and the said application is, however, filed in E.P.No.120 of 2003 arising out of O.S.No.341 of 2001. The decree in the said suit O.S.No.341 of 2001 is, admittedly, only in favour of the first petitioner. Neither petitioners 2 and 3 nor respondents 2 and 3 are parties in the said suit or the EP. The application E.A.No.934 of 2006 seeking rateable distribution of assets is, therefore, even if sustainable, is relatable and accruable only to the first petitioner. The said objection raised by the learned counsel for the respondents is well founded and it cannot be denied that the benefit of rateable distribution, if allowed, would go only in favour of the first petitioner and as such, the application has been moved only in the suit and the EP relating to her suit. It is, however, to be seen from the impugned order that various amounts were distributed among various decree holders. Para 18 of the impugned order, which is extracted below would show that entire amount was distributed among different decree holders. “1 8 . Admittedly, on perusal of the records in E.P.No.120/03 in O.S.No.341/01, E.P.No.119/2003 in O.S.No.339/2001 and E.P.No.121/03 in O.S.No.340/01 and the records in O.S.No.208/03 and 214/03 clearly go to show that an amount of Rs.21,874/- was credited to the account of the decree in P.s.No.341/01, Rs.21,782/- was credited to the account of the decree in O.S.No.339/01, Rs.21,782/- was credited to the account of the decree in O.S.No.340/01 and an amount of Rs.45,000/- and Rs.25,000/- was credited to the account of O.s.Nos.208/03 and 214/03 respectively. All these amounts were already distributed and sent to the respective account of the decrees in the above suits from the file of the Hon’ble Principal District Court, Kurnool from I.P.No.41/2001. Therefore, condition Nos. (b) and (c) of Sec.73 of the Code of Civil Procedure, as stated in the foregoing para, are not complied for rateable distribution under Section 73 of the Code of Civil Procedure as the present application in E.A.No.934/06 is filed by the petitioners subsequent to crediting the amounts to the respective account of the above suits and that they are not the assets held by the Court as they were already distributed among the creditors in I.P.No.41/2001 on the file of the Hon’ble Principal District Court, Kurnool.” 5. Learned counsel for the petitioners has strenuously argued that these amounts were only held by the Official Receiver in I.P.No.41 of 2001. Learned counsel has also produced a copy of the order in I.P.No.41 of 2001 dated 12.12.2002, which shows that the IP itself was dismissed in default. He also relied upon a submission of respondents 2 and 3 in their counter affidavit in para 8 to contend that these amounts were called for by the decree holders by virtue of orders passed by the respective executing Courts for execution of their decrees and accordingly, the Official Receiver has sent these amounts to the respective executing Courts. In other words, learned counsel for the petitioners states that there is no material to show that the aforesaid amounts were distributed in pursuance of any order of the insolvency Court referable to Section 4 of the Provincial Insolvency Act, 1920 (for short ‘the Act’). Consequently, therefore, the learned counsel contends that Section 73 CPC would be available and the prayer of the petitioners for rateable distribution is sustainable. In support of his contention the learned counsel has relied upon the provisions of Section 73 CPC to contend that the assets held by the Court are liable to be rateably distributed if more than one person makes an application to the Court for execution of decree against the same judgment- debtor. 6. I had adjourned the matter after hearing to enable the parties to produce any proceedings or order under Section 4 of the Act, if any. However, neither of the counsel were able to produce the same in spite of their efforts. It is, however, necessary to take into consideration the finding recorded in para 18 of the impugned order, as above, and it is evident that the amounts sent were earmarked for E.P.No.120 of 2003, E.P.No.119 of 2003, E.P.No.121 of 2003, O.S.Nos.208 and 214 of 2003 and different amounts are credited to the respective EP’s and suits. The said paragraph in the impugned order also records that the said amount was distributed and sent to the respective accounts of the decrees by the Principal District Court in I.P.No.41 of 2001. Even assuming that respondents 2 and 3 had called for these amounts from the Official Receiver through the executing Court, it is difficult to accept that on his own the Official Receiver would distribute these amounts without approval and orders of the insolvency Court. It is, therefore, not as if the amounts are called for only at the instance of respondents 2 and 3 and various amounts referable to various creditors and decree holders appear to have been distributed to the respective EP’s or suits. It is also not in dispute that respondents 2 and 3, who have obtained decrees for about Rs.45,000/- and Rs.25,000/- respectively had earlier sought attachment of these amounts and later when the suits were decreed this attachment became absolute. Thereafter, the respondents 2 and 3 have filed respective EP’s and have filed applications to send for these amounts and accordingly, these amounts are credited to their respective EP’s. 7. Each respective decree holder, therefore, becomes a secured creditor as held by this court in VASAVI AND COMPANY v. NAMPALLY PADMA [1] . In view of the above, I am unable to accept the contention of the learned counsel for the petitioners that the amounts distributed to the credit of various execution petitions or suits is not in accordance with the orders of the insolvency Court under Section 4 of the Act. As a consequence, therefore, the amounts which the petitioners seek for rateable distribution are no more assets of the judgment debtor – respondent No.1 and the Court below, therefore, was right in holding that they are not the assets of the judgment debtor and thereby the rateable distribution cannot be claimed by the petitioners. 8. Learned counsel for the petitioners relied upon a judgment of this Court in MANORA BAI v. SULTAN BAKATH BEGUM[2] for the proposition that for claiming rateable distribution it is not necessary that every decree holder must attach the property and it is enough if such decree holder applies for execution before the assets are received by the attaching Court. 9. While the proposition aforesaid cannot be disputed, on the facts of the present case, as mentioned above, the assets of the first respondent – judgment debtor having already been distributed, as mentioned above, the claim under Section 73 CPC as raised by the petitioners does not survive. Similar proposition, as above, was also reiterated in a later decision of this Court in KANAKAM SRINIVASA RAO v. GANGA VENKATESWARA RAO[3]. However, in the light of the findings, as discussed in detail by the Court below and considered, as above, on the facts and circumstances of this case, I am unable to find any error discernible from the impugned order. The civil revision petition is liable to be dismissed and is accordingly dismissed. There shall b no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July , 2010 DSK [1] 1992 (2) ALT 305 [2] AIR 1968 AP 113 [3] AIR 2003 AP 38