TMI Blog2021 (12) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, (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. - OP (C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find out other assets of the borrower, further proceedings was kept in abeyance. From the SARFAESI sale proceedings, Bank has recovered only an amount of ₹ 30,11,680.95/-. 3. While so, the respondent herein filed O.S. No. 632/2006 and obtained a decree against the aforesaid Jayakumar. The respondent then filed E.P. No. 461/2007 for execution of the decree and thereafter filed E.A. No. 1011/2011 to direct the petitioner Bank to deposit before the court the whole of the auction amount received in the SARFAESI sale proceedings. According to the petitioner Bank, though they filed objections to the said E.A., the court below without considering any of their contentions, passed Ext.P7 order directing the petitioner bank to deposit the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein as stated in the objections to the E.A. filed, 0.81 acres of property in re-survey No. 1923/3 belonging to the debtor over which equitable mortgage was created, has been sold in auction on 30.12.2008, pursuant to which, sale deed was executed in favour of the auction purchaser. So the Bank has neither possession nor title over the property in question. The title deed was deposited with the Bank as early as on 7.10.2005, pursuant to which, the equitable mortgage had been created whereas the attachment was effected only in the year 2006. That being the position, as held in the aforesaid decisions, attachments effected subsequent to the mortgage created in favour of the petitioner Bank will not affect the proceedings initiated under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution 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. 8. In this case, 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 atta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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