1 ■ APHC010052792021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI . (Special Original Jurisdiction) | THURSDAY,THE TWENTY FOURTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT HON BLE SRI JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE SMS AND HON’BLE SRI JUSTICE R RAGHUNANDAN RAO WRIT PETITION NO: 3409 OF 2021 AND ^yiL REVISION PETITION Nos.2551 OF 2022 & WRIT PETITION NO: 3409 OF 2071 Between: Ravinoothala Venkataramanaiah R/O.D.NO.FF3, Vibhav Apartments, [ Maruthinagar, Vijayawada, Krishna District. 60 OF 2023 S/o.Subbaiah, aged about 75 years, Near Ravindra Bharathi School, ...PETITIONER AND 1. Edelweiss Housing Finance Limited, Office of Edelweiss, C.S.T.Road, officer. Housing Finance Limited AVR Arcade, Near Benz Circle, Kalini, Mumbai - 400 098 represented by its authorized 2. Authorised officer, Camp at M/s. Edeiweiss #40-9-76/3, Sai Nagar, 1 Vijayawada Floor, 3. Omkara Assets Reconstruction Private Zillion, Junction of LBS Road Equinox, Kalina, Kurla (West), Mumbai-400070 and COO, Mr. Ajeet N.Taparia. Limited, D.No.# C/515, Kanakia and CST Road, BKC Annexe, Near Rep by it's President (Respondent No.3 is impleaded as per Court order Dt.07.12.2023 lA No.1 of 22 in WP No.3409 of 2021) vide ...RESPONDENTS Petition under Articie 226 of the Constitution circumstances stated i pleased to issue a Writ, Order of India praying that in the in the affidavit filed therewith, the High Court may be or Direction, more particularly one in the nature of Writ of Writ of Certiorari by calling the records pertaining to the orders in Crl.M.P.No.3348 of 2017 in C.F.No.6353 of 2017 dt. 22-11-2017 on fhe fiie of the Chief Metropoiifan Magistrate, Vijayawada and deciare the said order in Cri.M.P.No.3348 of 2017 in C.F.No.6353 of 2017 dt. 22-11-2017 consequential auction Notification dt. 30-1-2021 bank (published in Prajasakthi local news and the issued by the respondent paper on 30-1-2021) in respect of -4-15 on Plot No.28, Road No.5, Sector-1, Lotus land Park. Prateeknagar, Kedareswaraopet 1200 sft (first floor) and 1268 house property bearing Door No.20 Vijayawada admeasuring sq.ft (ground floor) as wholly illegal, arbitrary, violative of Articles 14, 21 and 300A of the Constitution of India and contrary Act apart from being violative of to the provisions of the Securitization principles of natural justice and not entitled to sell the said consequently declare that the respondent is property in pursuance of the sale notification dt. 30-1-2021. lA NO: 1 OF 9n9i Petition under Section 151 CPC in the affidavit fiied in support of the petition, the High Court may be pleased to suspend the order in Crl.M.P.No.3348 of 2017 in C.F,No.6353 of 2017 dt. 22-11-2017on the file of the Chief praying that in the circumstances stated Metropolitan Magistrate, Vijayawada and dt. 30-1->2021 issued by the - paper on 30-1-2021). the consequential auction sale Notification respondent bank (published in Prajasakthi local news Counsel for the Petitioner: SRI RAVI KONDAVEETI FOR SRI KIRTHI TEJA KONDAVEETI Counsel for the Respondent Nos.1 & 2: SRI P.PRABHAKAR Counsel for the Respondent No.3 SRI ANNAM NANCHARAIAH RAO APHC010583862022 050 '.I 0 CIVIL REVISION PETITION NO: 2551 OF 2022 Petition under Section 115 of CPC 20.09.2022 in E.P.No.5/2019 in O.S.No.191 of 2013 passed by the Court of the Metropoiitan Sessions Judge-cum-li Additionai District Judge, Vijayawada. Between: Ravinoothala Venkataramanaiah R/o.D.No.FFS, Vibhav Apartments, Maruthinagar, Vijayawada, Krishna District aggrieved by the order dated S/o.Subbaiah, aged about 76 years Near Ravindra Bharathi School, ...PETITIONER/DECREE HOLDER AND 1. K. Radha Mohana Rao, S/o Seethapathi Rao, R/o Flat No.28, Road No.5, Sector-I, Lotus Land Mark, Kedareswarapet, Vijayawada - 3 ...RESPONDENT/DEFENDANT/ JUDGMENT DEBTOR D.No.40-9-76/3, Sai Nagar, Vijayawada represented by 2. M/s Edelweiss Housing Finance Limited, 1 Floor, AVR Arcade, Near Benz Circle, its Authorised Officer ...RESPONDENT/RESPONDENT lA NO: 1 OF 9099 Petition under Section 151 CPC in the affidavit filed in praying that in the circumstances stated support of the petition, the High Court may be pleased to direct the Metropolitan Sessions Judge-cum-ll Additional District Judge, Vijayawada to deliver the possession of the undisputed portion of the E.P. schedule property to the petitioner by suspending the Orders in EP No 5/2019 and E.A.No.190/2019 in O.S.No.191 of 2013, dt. 20-09-2022 Counsel for the Petitioner: SRI KIRTHI Counsel for the Respondent No.2: SRI TEJA KONDAVEETI P.PRABHAKAR RAO FOR SRI ANNAM NANCHARAIAH APHC010676002022 CIVIL REVISION PETITION NO: 60 OF Petition under Section 115 of CPC aggrieved by the Order dt 20-09-2022 in EA No.190/2019 in EP No.5/2019 in OS No.191/2013 by the Court of the Metropolitan Sessions Judge Vijayawada. passed cum II Addl. District Judge, Between: Ravinoothala Venkataramanaiah, R/o.D.No.FFS, S/o.Subbaiah, aged about 76 years, Near RavindraBharathi School Vibhav Apartments, Maruthinagar, Vijayawada, Krishna District. ...PETITIONER/DECREE HOLDER AND 1. K. Radha Mohana Rao, S/o Seethapathi No.5, Sector-I, Lotus Land Mark, Rao, R/o Flat No.28, Road Kedareswarapet, Vijayawada - 3 ...RESPONDENT/DEFENDANT/ JUDGMENTDEBTOR 2. M/s. Edelweiss Housing Finance Limited, D.No.40-9-76/3, Sai Nagar, 1 Floor, AVR Arcade, Near Benz Circle, Vijayawada represented by its Authorised Officer. ...RESPONDENTS/ RESPONDENTS lA NO: 2 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Metropolitan Sessions Judge Vijayawada to deliver the cum II Addl. District Judge, possession of the undisputed portion of the E.P. schedule property to the petitioner by suspending the Orders in EA No. 190 of 2019 in EP No.5 of 2019 in OS No.191 of 2013 dt. 20-09-2022 Counsel for the Petitioner: SRI KIRTHI TEJA KONDAVEETI Counsel for the Respondent No.2: SRI P.PRABHAKAR RAO FOR SRI ANNAM NANCHARAIAH The Court made the following : COMMON ORDER IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI Bench Sr.Nos:- 115to 117 [3446] fAPHCOI 0052792021 Writ Petition No: 3409 of 2021 Along With Civil Revision Petition Nos.2551 of 2022 and 60 of 2023 Writ Petition No: 3409 of 2021 Ravinoothala Venkataramanaiah ...Petitioner Vs. Edelweiss Housing Finance Limited and others ...Respondents ********** Advocate for Petitioner: Mr. Ravi Kondaveeti appearing vice Mr. Kirthi Teja Kondaveeti Advocates for Respondents; Mr. P. Prabhakar Rao, Mr. Annam Nancharaiah CORAM :THE CHIEF JUSTICE DHIRAJ SINGH THAKUR SRI JUSTICE R. RAGHUNANDAN RAO : 24*'’July, 2025. Per DHIRAJ SINGH THAKUR. CJ: DATE Since the underlying issue involved in these cases is the same, we propose to dispose of the same by way this common order. The dispute in these cases revolves around the property bearing Door 2. No.20-4-15 on Plot No.28 situate in Kedareswararopet, Vijayawada, which has been subjected to proceedings under the SARFAESI Act. HC] & RCJ WP_3409_2021 & batch W.P.No.3409 of2Q?1 3. The petitioners case is that the said property could not have been subjected to sale under the SARFAESI Act inasmuch as the property had already been the subject matter of attachment and also the subject of sale in execution proceedings, pursuant to passing of a decree. Briefly stated the material facts are as under: 4. The petitioner filed Original Suit bearing O.S.No.191 of 2013, before the II Additional District Judge, Vijayawada against one K. Radha Mohan Rao for recovery of certain amounts which were due under various promissory notes. An Interlocutory Application bearing I.A.No.110 of 2013 was also filed seeking attachment of the property of the defendant - K. Radha Mohan Rao, in the said suit. 5. Although the suit was earlier numbered as O.S.No.71 of 2013, later being transmitted to the Court of XII Additional District and Sessions Judge, Vijayawada, it was numbered as O.S.No.191 of 2013 and I.A.No.1675 of 2013. The Trial Court, by virtue of order dated 17.05.2013, ordered conditional attachment of the property by 25.06.2013. , on 6. The order of attachment, dated 17.05.2013, was made absolute, by virtue of judgment and decree dated 07.11.2016 and no appeal was preferred against the said judgment and decree passed in the aforementioned suit which thus became final. An Execution Petition, bearing E.P.No.53 of 2017 3 HC] & RCJ- WP_3409_2021 & batch was filed for executing the decree in O.S.No.191 of 2013, which led finally to the auction of the property on 17.09.2018, in which auction the petitioner also participated, after obtaining due permission from the Execution Court. The petitioner being the highest bidder at Rs.50,90,000/-, was declared as the successful bidder. A Sale Certificate was then issued in his name by the Court on 19.11.2018. 7. The twist in the story comes in at this stage, when the petitioner claims that at the time of seeking delivery of the property in question it was found that, although the defendant in the Execution Petition was residing in the Ground Floor of the schedule property. First and Second Floors of the said property were found locked, with the orders of the Chief Metropolitan Magistrate, Vijayawada, pasted on the respective doors of the said property, which were issued in exercise of the powers conferred under the SARFAESI Act. 8. A Notice, dated 30.01.2021, is stated to have been published in the local News Paper for sale of the said property in regard to each of the floors of the same building. 9. The petitioner claims that the entire property had been purchased by the petitioner as a consequence of the decree obtained by him in his suit and that the action of the respondent Financial Institution in taking recourse to SARFAESI proceedings was without any legal basis and was done with the 4 HC) & RCJ WP_3409_2021 & batch collusion of the respondents. It is stated that the subsequent purchaser from the Judgment Debtor (JDR) in the suit had mortgaged the property with Edelweiss Housing Finance Limited much after the Trial Court had ordered attachment of the property in the Original Suit. Learned counsel for the petitioner would contend that the action of the respondent Financial Institution in resorting to sale of the property was null and void. In support of his contention, it is urged that the property was an independent building consisting of the Ground, First and Second Floors and were not different apartments, as such, which could independently be mortgaged with respondents for purposes of obtaining loan. Reference in this regard was also made to the boundaries in the sale certificate. 10. 11. Reliance was placed upon Sections 64 and 65 of the Code of Civil Procedure (for short, “CPC”), which envisage as under; “64. Private alienation of property after attachment to be void - [(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. 1 [(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.] or 65. Purchaser's title—Where immovable property is sold in execution of a decree and such sale has become absolute, the 5 HCJ&RCr WP_3409_2021 & batch property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute." 12. Learned counsel for the respondents do not dispute the fact that on the date when the mortgage was created, in regard to the property in question, the property stood attached by virtue of order of the Trial Court passed in O.S.No.191 of 2013. 13. Learned counsel for respondents, Mr. P. Prabhakar Rao, would submit that since the property in question was a multi-storey building, it was open to the Executing Court to go into the question as to how much of the property would be sufficient to satisfy the decree obtained by the petitioner and therefore, the issue ought to be left to the Executing Court to decide. 14. Reference in this regard was made to Order XXI Rule 66 of the CPC and in particular. Order XXI Rule 66 (2) (a), which envisages where properties ordered to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale and specify the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part. 15. We have heard learned counsel for the parties at length. 16. It is not denied that on the date when the defendant in O.S.No.191 of 2013 sold the property in favour of two different vendees by virtue of two Sale HCJ & RC| WP_3409_2021 & batch Deeds, the property had already been under attachment by virtue of orders of the Trial Court, dated 17.05.2013. 17. In view of the clear mandate of Section 64 of transfer, as in the present case, of the all claims enforceable under the attachment. Since the private transfer by the defendant in the suit the CPC, any private property attached was void as against was not based upon a contract for such transfer delivery entered into and registered before the or attachment, it certainly did not fall within the exception carved out in terms of Section 64 (2) of the CPC. 18. Any mortgage subsequently created during the attachment by the vendees based Section 64, therefore, would not entitle currency of the order of upon a sale which is void in terms of any Financial Institution, much less respondent No.1 herein to subject the property to procedure under the SARFAESI Act. as envisaged 19. Although a lot of emphasis respondents, Mr. P. Prabhakar Rao, by placing reliance was placed by learned counsel for the upon Order XXI Rule 66, yet, the said provision would not apply in the instant case as the property was sold in an auction already conducted in the execution proceedings based upon the decree obtained by the petitioner, which proceedings have become final. 20. The title of the property who is the purchaser of the in question had since vested with the petitioner, property in an auction conducted in such 7 HCl&RCJ WP_3409_2021 & batch execution proceedings. The sale having become absolute, in terms of Section 65 of the CPC, the property is deemed to have vested with the petitioner purchaser from the time when the property was sold. No appeal was preferred against the judgment and decree obtained by the petitioner, much less has any challenge been thrown to the confirmation of the title in regard to the property in question, with the petitioner. as a In the execution proceedings where only possession is being sought, the issue as to whether a part of the property could have been sufficient to satisfy the decree obtained by the petitioner, therefore, does not arise at all. In any case, counsel for the respondents has not disagreed with the contention of counsel for the petitioner that the property which was sold in auction was the entire property and not a part of the property in question. 21. In our opinion, therefore, respondents - Edelweiss Housing Finance Limited could not have resorted to the procedure under the SARFAESI Act and action initiated by the said respondent under the said Act being non-esf in the eyes of law, is hereby set aside. Accordingly, the writ petition is allowed. Civil Revision Petition Nos.2551 of 2022 and 60 of 2023 22. The petitioner had also filed an Execution Petition bearing E.P.No.5 of 2019 and also Execution Application bearing E.A.No.190 of 2019 in O.S.No.191 of 2013, seeking delivery of possession. Hcj & Rq WP_3409_202l & batch 23. By virtue of orders impugned in the present CRPs, dated 20.09.2022, the Executing Court held the accordingly dismissed the applications are not maintainable and on the ground that appropriate remedy to the petitioner was to approach Debts Recovery Tribunai inasmuch as the Financiai Institution i.e. Edelweiss Housing Finance Limited had since taken same possession of the property in question prior to the date of auction conducted by the Court in exercise of the powers under Section 13(4) read with Section 14 of the SARFAESI Act and therefore, reiegated the parties to Section 17 of the said Act. However, in view of the fact that we have aiiowed W.P.No.3409 could not have resorted to the the orders impugned passed by are set aside, it shall be open to the appropriate relief. of 2021 and held that the Financial Institution proceedings under the SARFAESI Act at all, the Executing Court dated 20.09.2022 petitioner to approach the Executing Court for 24. Accordingly, Civil Revision Petition Nos.2551 stand disposed of. of 2022; 60 of 2023, shall No order as to costs. Pending miscellaneous petitions, shall stand closed. application, if any, in these Sd/- G. HELA NAIDU ASSISTANT REGISTRAR //true copy// ' SECTION OFFICER To. T The Authorized Officer, Edelweiss Housing Finance Kalini, Mumbai officer, Camp at M/s Sai Nagar, 1®‘ Floor, Limited, Office of Edelweiss, C.S.T.Road 2. The Authorized - 400 098. Edelweiss Housing Finance AVR Arcade, Near Benz Limited #440-9-76/3 Circle, Vijayawada. 3- Omkara Assets Reconstruction Million, Junction Private Limited, D.No.# C/515, Kanakia of LBS Road and CST Road, BKC Annexe Near .na coori: “■ ^ «. ana coo, Mr. Ajeet N.Taparia. K. Radha Mohana Rao Sector-I r/ S/o Seethapathi Rao R/o Flat No.28, Road Kedareswarapet, Vijayawada - 3 Metropolitan Sessions Judge-cum-ll Additional District Vijayawada. 6. One CC to Sri Kirthi Teja Kondaveeti, Advocate [OPUCJ • ne CC to Sri Annam Nancharaiah, Advocate [OPUC] ne CC to Sri P. Prabhakar Rao, AdvocatefOPUCl 9. Two CD Copies. Lotus Land Mark, 5. The Judge ssb HIGH COURT DATED:24/07/2025 COMMON ORDER WP Nos. 3409 OF 2021 and CRP Nos.2551 of 2022 & 60 of 2023 I rv« * gf 12 AUG 2025 C/> t' .^-svutreniSection^ y ALLOWING THE W.P. AND DISMISSING THE CIVIL REVISION PETITIONS WITHOUT COSTS