2014 (1) TMI 1905

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....HONOURABLE MR.JUSTICE V.CHITAMBARESH FOR THE APPELLANT : ADVS.SRI.A.V.THOMAS (SR.), SMT.M.M.JASMIN, SRI.NIDHI SAM JOHNS FOR THE RESPONDENT : ADV. SRI.N.NAGARESH, ADV. SRI.SHAJI THOMAS, ADV. SRI.BINU PAUL, BY ADV. SRI.T.V.VINU, ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA, GOVERNMENT PLEADER SRI. RAFEEK V.K. SRI.R.S.KALKURA, SC, SBT JUDGMENT V. CHITAMBARESH, J Can the attachments effected subsequent to the creation of equitable mortgage be effaced after the property is purchased by another in sale conducted by the Recovery Officer of the Debts Recovery Tribunal? 2. The fifth respondent had mortgaged his property (3.44 ares in R.S. No. 38/2 and 0.9443 are in R.S. No. 393/3) situated in Kollam west village to the fourth responde....

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....9, Sub Registry Ofiice, Kollam on the basis of which Ext.P5 order of delivery was issued by the Recovery Officer. Mutation was effected in favour of the petitioner and land tax was also paid for the property evidenced by Ext.P6 receipt which however contained an endorsement by the village officer as to the existence of certain attachments from court. 4. ExtP7 encumbrance certificate obtained by the petitioner reflected that several attachments were made at the instance of respondents 6 to 11 subsequent to the creation of equitable mortgage in favour of the bank on 25.03.2000. The first of such attachments was on 21.10.2000 and the others were on 04.11.2000, 03.11.2001, 15.03.2003 and 22.06.2004 in addition to an attachment made in O.S. N....

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....est therein and any payment to the judgment-debtor of any deb, dividend or other moneys contrary to the such attachment, shall be void as against all claims enforceable under the attachment. [(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.] Explanation- For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.(emphasis supplied). Similarly Order XXXVIII Rule 10 CPC reads thus: "10. Attachment before judgment not to affect rights or strangers, nor bar....

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.... of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment by the civil court under Code of Civil Procedure. That order of attachment does not override or deserves to be preferred over the rights of a mortgagee or the effect of the mortgage as an encumbrance". 8. I shall quote from a few other decisions also to give completeness to the judgment taking note of the elaborate arguments of the petitioner and the absence of any case law on the point under the Act. (i) Thiru Venkita Reddiar Vs. Noordeen [1977 KLT 877]: "The consequence is on the happening of a judicial sale all previous attachment effected upon the property sold fall to the ground". (ii) Leelavathy Bai....