Andhra Pradesh State Financial Corporation = when the competent court has granted the relief of specific performance of agreement of sale in respect of the subject property in her favour, it is not open to the 1st respondent Corporation to sell the said property in favour of the 5th respondent in the guise of execution proceedings initiated by it. A perusal of the record shows that the agreement of sale alleged to have been executed in favour of the petitioner is an unregistered document and the same was executed subsequent to mortgage of the property in favour of the 1st respondent. In this view of the matter, the 1st respondent has a preferential claim over the property. Further, the 1st respondent Corporation is not a party defendant in the suits filed by the petitioner. As such, the decree obtained by the petitioner is not binding on the 1st respondent. Further, inasmuch as the sale has taken place in pursuance of the mortgage of the property in favour of the 1st respondent, the relief sought for by the petitioner cannot be granted. However, if the petitioner feels aggrieved by the action of the 3rd and 4th respondents, it is open to her to seek appropriate remedy against them in accordance with law. Hence, I do not find any merit in the writ petition to grant the relief as prayed for. The writ petition is, accordingly, dismissed. As a sequel, WPMP.No.5504 of 2013 filed for interim relief shall stand closed. No order as to costs.

WP 4417 / 2013

WPSR 23396 / 2013

PETITIONER RESPONDENT YANTRAPRAGADA SEETHA RATHNAM, W.G.DIST.   VS A.P.STATE FINANCIAL CORP.,REP.BY MD.,HYDERABAD, & 4 OTRS. PET.ADV. : NARESH KUMAR GUNDAPU RESP.ADV. :  SUBJECT: AP STATE FINANCE CORPN. DISTRICT:  WEST GODAVARI

HON’BLE SRI JUSTICE R.SUBHASH REDDY

WRIT PETITION No.4417 OF 2013

ORDER:

          This writ petition is filed for a Mandamus to declare the sale of the land admeasuring Acs.2.00 in R.S.No.173 of Korumamidi Village, Nidadavolu Mandal, West Godavari District, in favour of the 5^th respondent, pursuant to sale notice dated 29.07.2011, as illegal and arbitrary.

         

          Originally, the 3^rd and 4^th respondents were the owners of the aforesaid land.  They obtained loan from the 1^st respondent-Andhra Pradesh State Financial Corporation by mortgaging the said land. Inasmuch as the 3^rd and 4^th respondents failed to pay the said loan amount, the 1^st respondent has taken steps to recover the amount. In the said recovery proceedings, the mortgaged property was sold in favour of the 5^th respondent. Claiming that she has purchased the aforesaid land from the 3^rd and 4^th respondents under an agreement of sale dated 09.02.2007, the petitioner filed O.S.No.379 of 2009 on the file of the Principal Senior Civil Judge, Kovvur, against the 3^rd and 4^th respondents, for specific performance of the said agreement of sale or, in the alternative relief, pass a decree for refund of the amount paid as an advance. By judgment, dated 08.11.2010, the said suit was decreed ex parte granting the alternative relief of refund of the amount paid as an advance. Assailing the said judgment, the petitioner herself filed A.S.No.50 of 2012 on the file of the Additional District Judge, West Godavari District, Kovvur, alleging that instead of granting the decree for specific performance of the agreement of sale, the trial below granted the alternative relief of refund of the advance amount. After detailed consideration of the matter, the appellate Court modified the judgment dated 08.11.2010 passed by the trial Court granting the relief of specific performance and directed the petitioner to deposit the balance sale consideration, upon which the 3^rd and 4^th respondents were directed to execute the registered sale deed in favour of the petitioner.

          In this writ petition, it is the grievance of the petitioner that 

when the competent court has granted the relief of specific performance of agreement of sale in respect of the subject property in her favour, it is not open to the 1^st respondent Corporation to sell the said property in favour of the 5^th respondent in the guise of execution proceedings initiated by it.

          A perusal of the record shows that 

the agreement of sale alleged to have been executed in favour of the petitioner is an unregistered document and the same was executed subsequent to mortgage of the property in favour of the 1^st respondent. In this view of the matter, the 1^st respondent has a preferential claim over the property. 

Further, the 1^st respondent Corporation is not a party defendant in the suits filed by the petitioner. As such, the decree obtained by the petitioner is not binding on the 1^st respondent. 

Further, inasmuch as the sale has taken place in pursuance of the mortgage of the property in favour of the 1^st respondent, the relief sought for by the petitioner cannot be granted. 

However, if the petitioner feels aggrieved by the action of the 3^rd and 4^th respondents, it is open to her to seek appropriate remedy against them in accordance with law. Hence, I do not find any merit in the writ petition to grant the relief as prayed for.

The writ petition is, accordingly, dismissed. As a sequel, WPMP.No.5504 of 2013 filed for interim relief shall stand closed. No order as to costs.

____________________

R.SUBHASH REDDY, J

20^th February, 2013

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HON’BLE SRI JUSTICE R.SUBHASH REDDY

W.P.No.4417 of 2013

20^th February, 2013.

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