ORDER: This is the second round of litigation over the very same application moved by the first respondent herein in the pending execution petition. The first respondent filed E.A.No.313 of 1991 by way of a claim under Sec.47 of the Code of Civil Procedure (in short CPC) to declare that it is entitled to receive a sum of Rs.67,203.39 with subsequent interest thereon as the first charge-holder over the money lying in E.P.No.537 of 1989 pursuant to an attachment dated 8.2.1991 in E.A.No.106 of 1991 in E.P.No.34 of 1991 at the instance of the petitioner.

2. The brief facts which are required to be stated are that there was a decree in favour of one Shanthi Finance Corporation, who filed E.P.No.537 of 1985 and brought the house and plot, which was under mortgage with the first respondent herein at the instance of the second respondent herein, for Court-auction sale. The sale proceeds were deposited in the Munsif Court at Pondichery and the said Finance Corporation withdrew the amount to the extent of its dues while, the remaining amount was lying in E.P.No.537 of 1985. The petitioner herein obtained a decree in O.S. No.236 of 1983 as against the second respondent herein for a sum of Rs.45,760. Pursuant to the said decree in the said suit, the petitioner filed E.P.No.34 of 1991 and in E.A.No.106 of 1991 obtained an order of attachment of the sum remaining in deposit in E.P.No.537 of 1985. It was at that juncture, the first respondent herein came forward with E.A.No.313 of 1991 in the said E.P.No.34 of 1991 in O.S. No.236 of 1983, making the claim as mentioned above. The said execution application was dismissed earlier by the Execution Court. As against which, a revision in C.R.P.No.2856 of 1995 was preferred by the first respondent. The said revision came to be disposed of on 1.4.1997 in which a remand came to be made. While remitting the matter back, it was held therein as under:

“Though the petitioner can proceed against the immovable property, since they are secured creditors, but still the auction purchasers has to be put on notice. Where there is any other debt, or not is, not clear from the records. Whether the parties are entitled for rateable distribution or not is a question to be considered. Since the lower Court has not taken into consideration these aspects, I am of the opinion that it is better to send back the matter to the lower Court, giving an opportunity to all the parties to let in evidence and assert their claim. The lower Court is directed to consider the matter afresh, including the question as to whether the petitioner is entitled for rateable distribution or not.”

In the said order, it was further held in paragraph 4 as follows:

"When it is admitted that the execution proceedings taken out by the petitioner herein before the concerned authorities to execute the award is pending, it is open to the petitioner also to seek appropriate relief in the said execution petition either to attach or seek for appropriate relief.”

3. In the above stated background, when the matter came to be dealt with again by the Execution Court, the Court auction-purchaser was impleaded as a party to the application and he was also served notice. However, it is noted by the Execution Court that he remained ex parte in the proceedings. The Execution Court came to the conclusion that the first respondent herein, being a secured creditor, was having priority over the petitioner herein irrespective of the attachment ordered in E.A.No.106 of 1991. So holding, it went on to state that the attachment had to be withdrawn, leaving the first respondent society to approach the Second Additional District Munsif in E.P.No.537 of 1989 for appropriate reliefs. The Execution Court has also held that Sec.73, C.P.C. is not applicable to the petitioner as well as the first respondent herein.

4. Mr.R.Subramanian, learned counsel appearing for the petitioner, at the outset, contended that the claim of the first respondent is hit by the first proviso to Sec.73,

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