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2016 (4) TMI 676 - HC - Indian LawsPrevailing rights of recovery - whether mortgage inuring in its favour had to prevail over the PSB’s claim in execution of a money decree and directing that proceeds from the sale of a property by the Recovery Officer be used first to satisfy MMTC’s claim - Held that:- This Court does not have the benefit of evidence one way or the other to conclude that an enforceable mortgage claim existed. It is also noteworthy that neither of the authorities below us undertook this line of inquiry. Accordingly the Court deems that remand is the most appropriate course of action to take. This conclusion is based primarily on the fact that a blind application of M.R. Satwaji Rao (2008 (4) TMI 737 - SUPREME COURT) or Booz Allen (2012 (10) TMI 459 - SUPREME COURT) does not result in the invalidation of the Award, which has attained finality, inter parties (as far as MMTC and its borrowers) vis-à-vis the issue of liability of the said borrowers and guarantors are concerned. However, because of Order XXXIV Rule 14, the route adopted by MMTC to enforce that award is not correct. At the same time, any observations on the merits of the potential claim of MMTC in a suit for sale ought to be avoided. Limitation in the filing of the suit - Held that:- Here, it would be relevant to notice that having upheld PSB's contention that by reason of Order XXXIV Rule 14 and the decision in M.R. Satwaji Rao (supra) as well as Booz Allen (supra), the corollary is not that a further action is barred on the ground of limitation. The limitation for such a suit for sale, under Order XXXIV Rule 14 would be an issue that would arise in case it is filed by MMTC. Advisedly this court refrains from pronouncing on that eventuality, because the issue does not arise for consideration. Furthermore, such an issue would involve decision on a question of fact, which should not be adjudicated in writ proceedings. The sale ordered by the executing court is declared a nullity. As this court does not have the benefit of the record before the executing court, it does not express itself on the execution proceedings. The matter is remanded back to the Learned Recovery Officer to determine whether there is evidence to show that PSB has some ‘interest in, or was possessed of, the property in question’. Consequent to his findings, the Recovery Officer shall then proceed in accordance with provisions of law.
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