JUDGMENT:

The above Civil Miscellaneous Appeal is filed against the order and decree dated 22.06.2016 passed in E.A. No.184 of 2011 in EP number 209 of 2010 in OS number 571 of 2009 on the file of IV Additional Senior Civil Judge Guntur, whereby the claim petition filed by the appellant under Order XXI Ruels 97, 99 and 101 of the Code of Civil Procedure (for short ‘CPC’) was dismissed.

2. For the sake of convenience, parties shall be referred to as they are arrayed in claim petition.

3. The case of the claim petitioner in brief is that claim petition schedule property admeasuring 138.41 square yards of site along with industrial building, near Golden Engineering Enterprises, 2nd line, phase I and II, Auto Nagar, Guntur was purchased by the claim petitioner from State bank of Hyderabad, Chandramouli Nagar branch in the auction conducted by the bank. Claim petitioner became the highest bidder for Rs. 8,20,000. Sale was confirmed on 26.05.2011. After payment of the amount and sale certificate was issued in favour of the claim petitioner on 06.07.2011, on which date possession of the property was handed over to the claim petitioner. The sale certificate was registered on 07.07.2011 and the claim petitioner has been in possession and enjoyment of the claim petition schedule property since the date of its handing over possession.

4. While so, on 30.07.2011, Court Amin came to the claim petition schedule property in the absence of claim petitioner, to deliver possession of claim petition schedule property to the 1st respondent. However, the said delivery was resisted on behalf of the claim petitioner and Amin having noted the resistance went away informing that the 1st respondent obtained decree in O.S.No.571 of 2009 against the 2nd respondent, wherein suit was filed for recovery of money basing on promissory note executed by 2nd respondent. It was informed about the attachment of the property before judgement, passing of decree in favour of the 1st respondent, filing of execution petition by decree holder; bringing the property to the auction and participation of the decree holder in the auction with the leave of the court in E.P.No.209 of 2010 in O.S.No.571 of 2009. Subsequent to confirmation of sale and issuance of sale certificate, auction purchaser filed E.A.No.153 of 2011 and hence the Executing Court passed delivery order on 26.07.2011.

5. Claim petitioner having come to know about the proceedings, consulted the advocate. The advocate, in turn, informed the claim petitioner that 1st respondent herein filed O.S.No.571 of 2009 against 2nd respondent basing on promissory note dated 06.02.2007 executed by 2nd respondent for a sum of Rs.5,00,000/- and decreeing of the suit by the court below on 25.02.2010 for a sum of Rs.8,07,000/- with subsequent interest and costs. The claim petitioner was also intimated that 1st respondent herein filed I.A.No.864 of 2009 in OS number 571 of 2009 under Order 38 Rule 5 seeking attachment of the property before judgment in respect of the claim petition schedule property.

6. In the claim petition it was averred that 2nd respondent borrowed amount from State Bank of Hyderabad, Chandramouli Branch, Guntur on 05.08.2006 and at the time of obtaining loan, 2nd respondent deposited his title deeds and created equitable mortgage with the bank. Subsequently, as 2nd respondent failed to discharge the loan amount, the authorised officer of State Bank of Hyderabad, Guntur initiated proceedings under section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for short ‘SARFAESI Act’). Possession notice was issued and the same was published on 03.02.2011. The Bank officials filed Crl.M.P.No.39 of 2011 on the file of learned Chief Judicial Magistrate–cum-Prl.Assistant Sessions Judge, Guntur and as per the order, dated 17.02.2011 passed by the said Court wherein an Advocate Commissioner was appointed to take possession of the schedule property. Advocate Commissi