Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2021 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 276 - HC - Indian LawsEquitable Mortgage - seeking to direct the petitioner Bank to deposit before the court the whole of the auction amount received in the SARFAESI sale proceedings - HELD THAT:- To enable the decree holder to participate in the assets of a judgment debtor, the following conditions are to be satisfied by the decree holder; namely, (i) decree holder claiming share in the rateable distribution should have applied for execution of his decree to the appropriate Court, (ii) such application should have been made prior to the receipt of the assets by the Court, (iii) the assets of which a rateable distribution is claimed must be assets held by the Court, (iv) the attaching creditor as well as the decree holder claiming to participate in the assets should be holders of decrees for the payment of money, and (v) such decrees should have been obtained against the same judgment debtor. Therefore, no rateable distribution can be claimed unless all the aforesaid conditions are fulfilled. All the aforesaid conditions have not been satisfied and so the learned Munsiff could not have passed Exts.P7 order on that ground also. Even otherwise, the attachment which has been affected after the mortgage has been created in respect of the property, will have no effect and hence on the said ground alone, the order is liable to be set aside - Petition allowed - decided in favor of appellant.
|