ORDER:

1. The present Civil Revision Petition is filed questioning the order passed in E.A.No.50 of 2018 in E.P.No.36 of 2013 in O.S.No.155 of 2009 passed by the Principal Senior Civil Judge, Tirupathi.

2. The Petitioner is the decree holder and the petitioner had advanced loan to one G.Gangaraju on 30.03.2006 under a promissory note. The said Gangaraju expired leaving behind his wife i.e respondent No.1 herein. The petitioner then filed suit for recovery of money in the year 2009 and the same was decreed on contest on 19.02.2013. During the pendency of the suit, the petitioner got attached the amounts in dispute vide I.A.No.354 of 2009. The petitioner thereafter filed E.P.No.36 of 2013. However, no amounts were being paid by the respondent No.1.

3. The petitioner then filed E.A.No.50 of 2018 seeking for rateable distribution of amounts lying in the Court. In the said application, it was contended that respondent No.2 herein had filed O.S.No.169 of 2006 against respondent No.1 for recovery of amount advanced to late G.Gangaraju. The said suit was decreed ex parte by the very same Principal Senior Civil Judge, Tirupathi and in E.P.No.171 of 2006, the death benefits in the hands of garnishee of late G.Gangaraju were attached and the amount was sent to the Court and was available for distribution.

4. It was also pleaded that the respondent No.3 also filed a suit against respondent No.1 in O.S.No.552 of 2006 and the same was decreed by the Additional Junior Civil Judge, Tirupathi by attaching the amount lying in the Court.

5. The respondent Nos.1 and 3 did not contest the E.A, while respondent No.2 filed counter contending that the amounts were attached pending his suit. It was contended that in the suit O.S.No.552 of 2006 filed by respondent No.3, amounts lying in the Court were sought to be attached in I.A.No.106 of 2008. The respondent No.2 then filed claim petition I.A.No.254 of 2008 in O.S.No.552 of 2008 and objected to the attachment. The claim petition of the respondent No.2 was rejected, however in appeal filed there on i.e A.S.No.34 of 2011, the X Additional District Judge, Tirupathi allowed the same. In view of the judgment in appeal, it was contended that the respondent No.3 cannot have any claim and the petitioner is also not entitled to the amounts as the garnishee had sent the amounts for satisfaction of his decree only.

6. The executing Court passed a reasoned order holding that as the amount was received to the account in E.P.No.171 of 2006, the same cannot be sought for rateable distribution and dismissed the application. Hence, the present revision is filed.

7. Heard Sri C.Prakash, learned counsel for the petitioner and Sri Virupaksha Dattatreya Goud for the respondents.

8. The counsel for the petitioner contended that Section 73 C.P.C., provides for rateable distribution with regard to sale proceeds and would not be applicable with regard to non-sale deposits and that the Court should have in fairness rateably distributed the amounts under inherent powers rather than non- suiting the petitioner merely on account of the fact that the respondent No.2 got the amounts attached.

9. The Counsel for Respondent No.2 contended that the amounts were attached in his E.P. and the amounts were sent to satisfy his decree and as such, he has priority over the petitioner. Both the counsel cited case law in support of their contentions.

10. The Section 73 C.P.C. provides for rateable distribution and the same reads as under;

73. Proceeds of execution-sale to be rateably distributed among decree- holders.—(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons: Provided as follows:—

(a) where any property is sold subject t