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2020 (3) TMI 1343 - HC - Indian LawsAttachment of property - grievance expressed by the petitioner is that the E-auction notice does not contain the encumbrance pursuant to the order of trial Court in the suit filed by petitioner, attaching the properties before judgment - HELD THAT:- Since the Bank has given a specific reply that they have prior charge and that the petitioner's claim would be considered if there is any excess amount is realised after discharging the entire dues of bank, the petitioner has approached this court stating that the E-auction notice should contain the encumbrance and that the petitioner's right will be in jeopardy, if the encumbrance is not disclosed in the E-auction notice by the respondent bank - This court is unable to accept the contention of the petitioner that he is aggrieved by not referring to the order of attachment in the E-auction notice. First of all the petitioner is not a secured creditor and the order of attachment is much later to the proceedings initiated by the Bank under Securitization Act. Whether the Bank is required to accept the order of attachment before Judgment as an Encumbrance so as to disclose the same in the sale notice? - HELD THAT:- In this case, it is admitted that the bank has got the first charge in view of the mortgage and it is not in dispute that the proceedings for recovery of money had already been initiated by resorting to the provisions of Security Interest (Enforcement) Rules 2002. In such circumstances by virtue of Section 64 of Civil Procedure Code and Order 38 Rule 10 of C.P.C., the order of attachment is not binding on the bank to proceed against the property in the manner known to law as a secured creditor. The order of attachment before Judgment in a suit in which the Bank is not a party is not an encumbrance so as to affect the rights of Bank or the title of purchaser of property in the auction at the instance of Bank - As far as the Bank whose right as Secured Creditor is protected and the order of attachment in this case is not an encumbrance. TAs far as the Bank whose right as Secured Creditor is protected and the order of attachment in this case is not an encumbrance - the writ petition is neither maintainable nor having merits - petition dismissed.
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