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TMI Blog2014 (1) TMI 1905X X X X Extracts X X X X X X X X Extracts X X X X ..... RESH 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 respondent bank ('the bank' for short) as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. No. 193/2001. The Writ Petition has been filed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decree-holder from applying for sale-Attachment before judgment shall not affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tachment 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 Vs. Gangadharan [1987 (2) KLT SN Case No. 38]: "Attachment will not confer any title in favour of the person who attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mortgaged property in favour of the petitioner under Ext. P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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