TaxTMI 
TaxTMI 
2020 (8) TMI 853
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....ls. It appears that the property of the respondent namely the entire mill premises were also attached and the Court also drew sale proclamation by fixing the upset price at Rs. 1,00,00,000/-. During the pendency of the execution proceedings, the revision petitioner filed E.A.No.504 of 2006 in E.P.No.121 of 1986 in O.S.No.85 of 1979 to reduce the upset price from One crore to Forty lakhs. 3.The revision petitioner filed another application in the execution petition in E.A.No.505 of 2006 in E.P.No.121 of 1986 to grant permission to the revision petitioner/plaintiff to bid in the auction and adjust the decree amount. The first respondent in C.R.P.(MD)No.884 of 2015 is a third party to the suit and execution proceedings. In C.R.P. (MD)No.884 of 2015, M/s.Rukmini Mills is the second respondent. In all other Civil Revision Petitions, M/s.Rukmini Mills is the sole respondent. The first respondent in C.R.P.(MD)No.884 of 2015 filed E.A.No.372 of 2012 in E.P.No.121 of 1986 in O.S.No.85 of 1979 for the following reliefs: a) to adjudicate that the petitioner bank alone, as a secured creditor, is entitled to bring the schedule mentioned property for sale and to appropriate the sale ....
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....secured creditor by getting equitable mortgage on 18.08.1980, will have preference to proceed against the properties to recover the dues. 5.The learned Principal Sub Court, Madurai, dismissed the execution petition in E.A.No.121 of 1986 in O.S.No.85 of 1979 and the applications in E.A.No.504 of 2006 and E.A.No.505 of 2006 in E.P.No. 121 of 1986. The Principal Sub Court allowed E.A.No.372 of 2012 in E.P.No.121 of 1986 filed by the first respondent bank in C.R.P.(MD)No. 884 of 2015. Aggrieved by the common order passed by the learned Principal Subordinate Judge, Madurai, the revision petitioner/plaintiff in O.S.No.85 of 1979 has preferred all the above Civil Revision Petitions. 6.C.R.P.(MD)No.881 of 2015 is preferred as against the order in E.P.No.121 of 1986; C.R.P.(MD)No.882 of 2015 is preferred as against the order in E.A.No.504 of 2006; C.R.P.(MD)No.883 of 2015 is filed as against the order in E.A.No.505 of 2006 and C.R.P.(MD)No.884 of 2015 is filed as against the order in E.A.No.372 of 2012 in E.P.No.121 of 1986, by the Principal Sub Court, Madurai. 7.In all the above Civil Revision Petitions, the positive and consistent case of the bank and the judgment debtor is that ....
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....M/s.Rukmani Mills. 10.The Execution Petition was filed by the revision petitioner to execute the money decree which was for a sum of Rs. 7,71,888/- as on 1986. The bank has got enough records to show that the property was taken possession under SARFAESI Act. The mortgage by deposit of title deeds is evident from the letter of confirmation which was in the prescribed format detailing the documents of title handed over to the bank at the time of creating the mortgage in the year 1980. M/s.Rukmani Mills has admitted the mortgage by deposit of title deeds in their counter affidavit filed before the lower Court. Even before this Court, the learned Counsel appearing for M/s.Rukmani Mills fairly conceded that an equitable mortgage was created by deposit of title deeds with effect from 08.09.1980. The learned Counsel appearing for the petitioner submitted that the confirmation letter dated 08.09.1980 does not disclose the property details. The confirmation letter refers to all the title deeds relating to the property of M/s.Rukmani Mills situate in various places. It is admitted that the documents of title are pertaining to the mill premises. From the list of documents produced, the lea....
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....title of purchaser of property in the auction at the instance of Bank." 11.On the admitted facts, this Court is of the view that the bank's right to proceed against the property is protected against any one who has no prior right. In this case, the order of attachment was much after the mortgage and therefore, is not binding and the bank can proceed against the property as held by the Hon'ble Division Bench of this Court. Order 38 Rule 10 of C.P.C. protects the rights of the prior mortgagee and therefore, any attachment after the mortgage cannot affect the rights of the bank which existed prior to the attachment. The bank is not a party when the order of attachment was passed by the executing Court in 2008. It is true that the order of attachment will be subject to the bank's right to proceed against the property based on the mortgage. The claim petition was filed by the bank in E.A.No.372 of 2012 to hold that the petitioner bank alone as a secured creditor is entitled to bring the schedule mentioned property for sale and appropriate the sale proceeds towards the loan account of the bank and to adjudicate that the revision petitioner herein being a decree-holder is e....