O R D E R:

This Civil Revision Petition is directed under Section

115 of C.P.C., against the order, dated 02.07.2010, in E.P.No.463 of 2001 in O.S.No.1018 of 2001 on the file of the Principal Junior Civil Judge Court, Ramachandrapuram, East Godavari District, where under the petition filed under Order XXI Rule 52 of the Code of Civil Procedure, 1908 against 1st J.Dr., directing the garnishee to effect attachment and to remit the same into the Civil Court Deposit was dismissed.

2. The facts behind the said E.P., filed by the Decree Holder were that, he filed O.S.1018/2001 on the file of I Addl. Junior Civil Judge Court, Rajahmundry, obtained the decree on 22.11.2004, which was got transmitted to Principal Junior Civil Judge Court, Ramachandrapuram, where the schedule property is situated. Even after passing the decree, the Judgment Debtors failed to pay the amount due under the decree. Previously, the Decree Holder filed E.P.11/2006 for sale of the immovable property of the J.Drs., but the same was not-pressed on 13.11.2007, because the property was auctioned by ING Vysya Bank, Ramachandrapuram Branch. An amount of Rs.3,63,385/- belongs to the 1st J.Dr., is lying in the custody of the bank vide Account No.741044000280 being the excess amount of auction bid amount. As such he is entitled to recover the E.P., amount of Rs.67,146/- from out of the balance amount lying with garnishee.

3. The Judgment Debtors 1 and 2 remained ex parte before the trial court.

4. The Garnishee-Bank i.e., ING Vysya Bank, Ramachandrapuram filed counter admitting the fact that it realized a sum of Rs.7,10,000/- in a public auction of the house property under SARFAESI Act, 2002 and still there is balance of Rs.3,63,385/- lying in their bank. While the matter stood thus, a suit notice was received from Senior Civil Judge Court, Ramachandrapuram in O.S.No.258/2007 by showing the bank as a party therein stating that the J.Dr., borrowed a sum of Rs.1,50,000/- on 08.11.2001 from Chandaila Veerasekhara Kumar by executing a registered simple mortgage deed and filed the suit for realization of Rs.3,63,000/- for passing a preliminary decree, and to pass a decree for the balance amount of unsatisfied decree against the garnishee-bank. Hence, the bank has to pay the amount towards preliminary decree to be passed by the Senior Civil Judge Court, Ramachandrapuram in respect of 2nd mortgage executed by the J.Dr., and no amount remains to withhold by the bank. Further, one Smt. Vaitla Satyavathi, D.Hr., in E.P.No.442/2007 in O.S.No.380/2001 on the file of Prl. Junior Civil Judge Court, Ramachandrapuram issued an attachment notice to withhold a sum of Rs.1,05,421/-

towards the said decree debt.

5. On hearing both parties, the executing court held that as the 2nd mortgagee is a secured and preferential creditor and the mortgage runs along with the property, thus priority shall be given to the 2nd mortgagee and no amount is lying with the garnishee after deducting the sum of Rs.3,63,000/-, as such the D.Hr., is not entitled for attachment of the same.

6. No evidence, either oral or documentary, was adduced on behalf of both parties.

7. Heard Sri Y.S.Siva Bhami Reddy, learned counsel for the petitioner/decree holder, Sri N.Siva Reddy, learned counsel appearing for the judgment debtors and Smt.

V.Dyumani, learned counsel appearing for the garnishee-bank.

8. The petitioner filed the execution petition against the respondents/judgment debtors 1 and 2 and also impleading the garnishee-bank as a party to the proceedings. The E.P., was filed under Order 21, Rule 52 of the Code of Civil Procedure with a prayer to direct the garnishee to effect the attachment and to remit the E.P., amount into the Court by way of Demand Draft or Cheque. The record shows that an amount of Rs.67,146/- was claimed towards the E.P., amount.

9. The garnishee opposed the E.P., on the ground that the property attached by the Court in this case on 22.10.2001 was sold by the bank in a public auction held on 05.10.20