These revisions are filed by the decree holder in OS No. 166 of 2004 on the file of the I Additional Senior Civil Judge, Kakinada challenging the order dated 28.2.2007 of the II Additional Senior Civil Judge, Kakinada in EA No. 4 of 2007 and in Memo SR No. 4589 of 2005 in EP No. 195 of 2004 in the said suit.

2. The petitioner had filed OS No. 166 of 2004 against one Mamidi Ravi Ratna Swaroop for recovery of Rs. 3,45,696/- being the principal and interest due under a pro-note dated 1.11.2001 executed by the latter in his favour. The said suit was decreed ex parte on 27.4.2004 by the I Additional Senior Civil Judge, Kakinada.

3. The petitioner filed EP No. 195 of 2004 for recovery of Rs. 3,77,913/- and brought property allegedly belonging to the judgment debtor to sale. With the permission of the Court, the petitioner also bid in the auction conducted by the Court and became the highest bidder for Rs. 9,10,000/-.

4. Before the sale could be confirmed, two third parties filed a claim petition contending that each of them had 1/3rd share in the EP schedule property and therefore the sale to that extent has to be set aside. These claim petitions were allowed on 25.9.2006, the sale of 2/3rd of the EP schedule property was set aside and the sale of only 1/3rd of the undivided share in the EP schedule property was confirmed.

5. In view of this event, the petitioner filed EA No. 4 of 2007 under Rules 231 to 235 of the Civil Rules of Practice read with Order 24 and Section 151 CPC praying the trial Court to issue an account payee cheque in his favour for Rs. 5,72,948/- representing the value of 2/3rd of the EP schedule, in respect of which the sale was set aside.

6. When this was pending, the 2nd respondent filed a Memo (which was given SR No. 4589/05) before the trial Court contending that he had obtained a decree against the same judgment debtor in OS No. 140 of 2004 on the file of the trial Court for Rs. 5,07,600/- with subsequent interest and costs; that he filed EP No. 118/2005 in his suit and got attached the properties of the judgment debtor for recovery of Rs. 5,49,825/- towards the decretal amount; that petitioner in this CRP is only claiming Rs. 3,77,773/-; there is a balance of Rs. 5,31,979/- left after satisfying the claim of the petitioner; and that the Court grant ratables for the said amount in his favour under Section 73 of the CPC.

7. By a common order dated 28.2.2007, the trial Court dismissed EA No. 4 of 2007 filed by the petitioner and upheld the objection raised in the memo filed by the respondent. Thus the petitioner could not get the amount of Rs. 5,77,948/- from the trial Court by way of cheque which he had deposited as consideration for purchase of 2/3rd share in the EP schedule property which was set aside at the instance of the third party claimants by the trial Court on 25.9.2006.

8. Challenging the same, these CRPs are filed by the petitioner.

9. Heard Sri K.V. Bhanu Prasad, learned Counsel for the petitioner and Sri V.L.N.G.K. Murthy, learned Counsel for the respondent.

10. The Counsel for the petitioner contended that the trial Court erred in dismissing EA No. 4 of 2007 filed by the petitioner and in upholding the objections filed by the respondent in the memo and preventing the petitioner from withdrawing the excess amount deposited by him towards 2/3rd share in the EP schedule for which the sale was not confirmed. He contended that the Court below did not understand the principle of ratable distribution; that the Court below should have taken note of the fact that the claim petitions of third parties in respect of 2/3rd share in the EP schedule property were allowed on 25.9.2006 and only thereafter the sale in petitioner's favour in respect of the balance 1/3rd was confirmed; in this situation the case law relied upon by the trial Court laying down the principle that "there is no warranty of title in respect of Court sales" has no application; that the said principle would apply only if the Court had confirm