Jacob G Punnachalil v Sundaram BNP Paribas Home Finance Limited and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** **WA.No.1561 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 2180/2019(V) OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT IN WPC 2180/19:** **JACOB.G PUNNACHALIL HOUSE, EDAKKATTUVAYAL, PIRAVOM, ERNAKULAM - 682 313, NOW RESIDING AT PUNNACHALIL HOUSE, MULANTHRURUTHY P.O., ERNAKULAM DISTRICT - 682 314.** **BY ADV. SRI.VARGHESE P.CHACKO** ## **RESPONDENTS/WRIT PETITIONER/RESPONDENT NOS.1 & 3 IN WPC:** **1 SUNDRAM BNP PARIBAS HOME FINANCE LIMITED SUNDARAM TOWER, 46, WHITES ROAD, CHENNAI-600 014, REP. BY ITS AUTHORIZED OFFICER VISHNU R.** **2 THE SUB REGISTRAR SUB REGISTRAR OFFICE, TRIPUNITHURA, ERNAKULAM - 682 313.** **3 MR.RAMACHANDRAN P.N. PUTHENMADATHIL, EDAPPALLY SOUTH, EDAPPALLY, ERNAKULAM - 682 024.** ## **SR.GP SRI.V.TEK CHAND FOR R2** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1561 of 2019** **2** ## **JUDGMENT** Dated this the 10[th ] day of February, 2020 ## **S.Manikumar, C.J.** Instant writ appeal is filed against the judgment in W.P. (C)No.2180 of 2019 dated 24.1.2019, by which the writ court disposed of the writ petition observing thus: “7. In view of the above said settled position, it is ordered that the benefit of the said directions would also be available to the petitioner in case it is beyond any dispute that the impugned attachment orders in this case have been rendered after the creation of mortgage. Accordingly, it is ordered that the petitioner will file a proper application before the 1st respondent Sub Registrar seeking effacement of the attachment shown as Serial Nos.4 and 5 of Ext.P3 impugned certificate and a certificate issued by the petitioner showing the exact date of creation of the mortgage involved in this case should also be produced before the 1st respondent. The petitioner should also implead R-2 and R-3 herein as respondents in the said application. Thereafter, the 1st respondent will issue notice to R-2 and R-3 and will decide the limited factual issue after hearing the petitioner and the 4th respondent as to whether the impugned attachment orders shown as Serial Nos.4 and 5 in Ext.P3 in this case have been rendered after the date of creation of the mortgage involved in this case and if in the above process it is found by the 1 st respondent that the impugned attachment orders referred to as Serial Nos.4 and 5 in Ext.P3 have been rendered after the date of creation of the mortgage, then the 1st respondent will make an additional entry in Book No.1 as conceived in Section 89(5) of the Registration Act effacing the said attachment in view of the directions issued by **W.A.No.1561 of 2019** **3** this Court in this judgment. The petitioner will file the abovesaid application within a week’s time along with the abovesaid certificate and a certified copy of this judgment before the 1st respondent, upon which the 1st respondent will complete the abovesaid process as directed hereinabove in the matter of issuing notice to R-2 and R-3 herein and hearing the petitioner & R-2 and R-3, etc. The entire process in that regard should be duly completed by the 1st respondent within a period of six weeks from the date of production of a certified copy of this judgment.” 2. Short facts leading to the appeal are that, writ petitioner/1[st] respondent herein is a non banking housing finance company. One Venugopal P. and two others had availed financial assistance to the tune of Rs.50,00,000/- from the 1[st] respondent by depositing title deed. Since the borrower committed default, 1[st] respondent had to take recourse to bring the mortgaged property in the sale under the provisions contained in SARFAESI Act, 2002. The appellant and 3[rd] respondent herein are also creditors of the borrowers (Mr.Venugopal P. and two others) and had secured attachment of the very same property in question as per order dated 25.5.2014 and 23.9.2016 in I.A.Nos.2231 of 2014 and 4265 of 2016 in O.S.No.201 of 2016. In view of the encumbrance shown as Serial Nos.4 and 5 in the encumbrance certificate (Ext.P3 in the writ petition) in respect of the property in question due to the abovesaid attachment orders, purchasers are not coming forward in the sale **W.A.No.1561 of 2019** **4** proceedings initiated by the writ petitioner/1[st] respondent. Hence W.P. (C)No.2180 of 2019 has been filed by the 1[st] respondent herein. 3. After considering the rival submissions and taking note of the decisions of this Court in **HDFC v. SRO** reported in **2011 (3) KLJ 561** and **Madhan v. Sub Registrar** reported in **2014 (1) KLT 406** , writ court disposed of the writ petition as extracted above. 4. Being aggrieved, instant writ appeal is filed inter alia on the following grounds: A) The directions contained in the above Judgment seeks a substantial alteration or expunging of a lawful order passed by civil court without offering an opportunity of being heard to the effected party. Hence, such an overriding direction nullifying lawful orders of subordinate judiciary is having an effect of diluting the basic structure of the scheme by which lower judiciary is set up. Hence, random expunging of Lower Court orders by placing undue reliance on the concocted and concealed version of the 1[st] respondent financier is highly detrimental to the very existence of Justice delivery system. Moreover, no compelling reasons whatsoever is bought out by the 1[st] respondent/writ petitioner to pass the impugned Judgment even without offering an opportunity of being heard to the respondents in the said writ petition. Hence, the Hon'ble single Judge erred in invoking its extra ordinary jurisdiction to dispense with the appearance of the effected parties in the said writ petition before passing the said Judgment. Hence, the principles of Natural Justice would require that, this Hon'ble Court may be pleased to urgently intervene in the matter and set aside abovesaid Judgment as prayed for in the above Appeal. **W.A.No.1561 of 2019** **5** B) The appellant/2[nd] respondent in the above writ petition ought to have been offered with an opportunity of being heard by the Hon'ble single Judge before passing the above impugned judgment, rather than finding that, “ in the nature of orders proposed to be passed in this Writ Petition, notice to R2 and R3 will stand dispensed with”. Wrong interpretation of law leading to serious damage with regard to discipline and administration of Justice delivery system had taken place in matters connected with passing of the impugned Judgment. Hence, urgent interference by this Honourable Court is called for to set aside the impugned judgment dated 24.01.2019 in WP(C)No.2180/2019 passed by the Hon'ble Single Judge, by allowing the prayers as prayed for in the above writ petition. C) The subject matter covered in the impugned judgment is regarding removal of attachment and an injunction Order passed by civil court in accordance with Law from the Annexure A3 Encumbrance Certificate. And hence, if the legally sustainable Civil Court Orders are expunged in compliance to the impugned Judgment, then it primarily affects the litigating parties namely, the 2[nd] and 3[rd] respondents, in the said Writ Petition who are the appellant and one Mr. Ramachandran P.N. Respectively. And as the 1[st] respondent/writ petitioner seeks to sell the residential property, eventhough every one residing in the said property along with third parties namely (1) Venugopal P. (Borrower), (2) Deepthi Venugopal (Co-Borrower) and (3) Gangadaran Nambiar (Co-Borrower) would also definitely be effected. Moreover as the legally valid Civil Court Orders of the Honourable District Judge Ernakulam and that of the Honourable Sub Court Ernakulam are directed to be effaced from the Annexure A3 Encumbrance Certificate the justice delivery system concerning the said lower Courts would also get effected directly. Hence, if the impugned Judgment is enforced by way of **W.A.No.1561 of 2019** **6** expunging the legally sustainable Civil Court Orders from the Annexure A3 Encumbrance Certificate that are obtained by the appellant as well the 3[rd] respondent in the above Writ Petition, then devaluation or belittling of the Civil Court Orders would take place in the mind of litigant public, and it would definitely have an adverse effect on the reputation of this Honourable Court. Hence the learned single Judge ought not to have rushed to pass the impugned Judgment. Thereby for the sake of Justice delivery system of Civil Courts it is imperative on the part of this Honourable Court to either pass a guideline to the lower/subordinate Judiciary, that would mandate such Courts to enforce the guidelines that are to be passed by this Honourable Court, before passing of any Order of attachments or Injunction Orders on any immovable property, that is already mortgaged or otherwise encumbered as well in the above facts and circumstances of the above appeal this Honourable Court may re-look into the entire issue so as to avoid the embarrassing situation where in which a Judgment of this Honourable Court nullifies the effect of lawful and legally sustainable Orders passed by the lower Judiciary, especially when the major effected party is a poor litigant who had obtained a Decree and Judgment in a money suit and its consequential attachment in accordance with law, by suffering all the expenses. D) If the impugned Judgment is allowed to be enforced, the attachment by way of a lawful Order passed by the Honourable Sub Court Ernakulam in O.S.No.201/2016 would become redundant and hence it would have the effect of interfering with the administration of justice, as the civil right of the appellant would be affected adversely for none of his mistake. Hence, the above said Judgment is a serious error in law and the Honourable Single Judge had passed an erroneous Judgment by which the civil right of the appellant stands effected. Hence, the interest of Justice would **W.A.No.1561 of 2019** **7** require that this Honourable Court may be pleased to urgently intervene in the subject matter and stay the operation of the above impugned Judgment with immediate effect. E) Immediately the appellant came to know as regards to the impugned Judgment, through Annexure A1 notice issued to the appellant by the 2[nd] respondent Sub-Registrar, the Appellant had issued Annexure A2 notice to the Sub-Registrar, seeking time and had filed the above appeal seeking to set aside the impugned Judgment. Hence there is no wilful delay or laches or omission on the part of the appellant in filing the above writ appeal with the delay that is caused for reasons beyond his control. Thereby the interest of justice would require that this Honourable Court may be pleased to condone the delay in filing the above appeal as prayed for. F) As per serial No.3 entry in Annexure A3 Encumbrance Certificate, the 1[st] respondent/writ petitioner have only a claim of Rs.1,00,000/with interest if any, with effect from 03.01.201 vide “Panayakaimattom”/simple mortgage No.34/2013 dated 3.1.2013 of SRO Tripunithura. And the appellant do not have any objection in this regard. But creation of a simple mortgage for an amount of Rs.1,00,000/- would only confer 1[st] charge for the said mortgage money. But it will not invalidate 2[nd] and 3[rd] Registered claims and charges of third parties on the property especially when the property in question is valued for more than Rs.1 Crore in the current Market value endowed by its proximity to Tripunithura Town. G) As per the Doctrine of Priority enshrined in Section 48 of Transfer of Property Act the Writ Petitioner can at the most claim Priority in satisfying the claim of Rs.1,00,000/- over the other subsequent charges or claims. But creation of mortgage to the property will not devolve absolute title on the property to enable **W.A.No.1561 of 2019** **8** the mortgagee to lift the subsequent Court attachments effected on that property other than claiming first priority over the said property with respect to the registered simple mortgage liability amount of Rs.1,00,000/- with interest with effect from 3.1.2013. H) It is evident from the above Writ Petition that, the 1[st] respondent/writ petitioner intends to sell the mortgaged property belonging to a 3[rd] party who is not a party to the above writ petition, towards the alleged claim of more than Rs.1,00,000/- with interest by disregarding serial No.3 entry in the Annexure A3 Encumbrance Certificate. But the 1[st] respondent/writ petitioner cannot be permitted to avail priority of claim other than the registered mortgage amount of Rs.1,00,000/- with interest, as against the very same property by claiming some debt liability vide any unregistered mortgage or any personal arrangement with the borrower. I) Parties are bound by a registered mortgage rather than pleadings regarding an unregistered mortgage. J) A registered charge by way of a Civil Court attachment will have priority over any claim or pleading regarding an unregistered Mortgage. Hence the 1[st] respondent will have a legal claim only as against the registered Mortgage. K) If the subject matter property can satisfy all the registered charges enlisted in the Encumbrance Certificate, then the recovery shall be carried out priority wise only as against the registered Mortgage entries. And it may be a case that, the recovery, if any, beyond the mortgage amount reflected beyond the Registered mortgage may gain preference or consideration only after exhausting all the registered mortgage claims as mentioned in the Annexure A3 Encumbrance Certificate.” ## 5. Heard learned counsel for the parties and perused the material **W.A.No.1561 of 2019** **9** ## available on record. ## 6. Annexure A7 order passed by the Sub Court, Ernakulam in I.A.No.5096 of 2017 in O.S.No.201 of 2016 reads thus: ## “ **O R D E R** This is a claim petition preferred by the claim petitioner under Order 38 Rule 10 and Section 151 CPC to lift the order of attachment passed by this court as per order in IA 4262/2016 dated 22/9/2016. 2. The petitioner is a Private Finance company to claim that this defendant in the present suit had created a mortgage in favour of the petitioner on 3/1/2013 while standing as a guarantor to loan availed by his son and thereby deposited title deed of his property which was subsequently attached in the present suit by the first respondent/plaintiff on 23/9/2016. The claim petitioner claims to be a secured creditor with respect to the property under attachment, even prior to the order of attachment effected on the property on creating a mortgage by deposit of title deed so that he had prayed to raise the order of attachment in order to proceed legally against the property under attachment under the provisions of the Securitisation and Reconstruction of Finance Assets and Enforcement of Security Interest Act (SARFAESI). 3. The first respondent is the plaintiff and 2[nd] respondent is the defendant in the suit. They did not file counter to this application. 4. The point for determination is:- ## **Whether the petitioner is entitled to lift the order of attachment effected on the attachment schedule property?** 5. No oral evidence was adduced on both sides whereas Ext.A1 to A4 were marked on side of the petitioner. There was no **W.A.No.1561 of 2019** **10** representation on the side of the respondents when the petition was taken for trial and during the stage of argument. 6. Heard the counsel for the petitioner. 7. **The point:-** The claim petitioner is a third party in a suit for recovery of money, preferred by the first respondent against 2[nd] respondent. As per order in IA.4262/2016, the attachment schedule property belongs to 2[nd] respondent was attached for a sum of Rs.14,00,000/- on 20/9/2016. The claim petitioner would contend that the son of the 2[nd] respondent had availed a loan from the petitioner to which the 2[nd] respondent stood as a guarantor and deposited his title deed pertaining to the attachment property and thereby created amortgage by deposit of title deeds along with executing loan agreement dated 31/12/2012. As the petitioner got 1[st] charge on the property on the strength of a mortgage created to the property prior to the attachment so that he has prayed to lift that attachment to enable him to legally proceed against that property under the SARFAESI Act. Ongoing through the original tile deeds of the 2[nd] respondent produced by the petitioner along with the loan agreement, it is apparently evidenced that prior to the attachment on 20/9/2016, the property under attachment was under mortgage to the claim petitioner for a loan availed by the son of the 2[nd] respondent. So the claim petitioner has got first charge over the attached property. But creation of mortgage to that property will not confer absolute title on the property to enable the mortgagee to lift the subsequent court attachment effected on that property other than claiming first priority over the said property with respect to the mortgage liability. Said first charge over the property necessarily means that the subsequently attaching creditor can enforce that attachment to the property subject to the mortgage liability created on the property and only on exhonouring that first charge over the **W.A.No.1561 of 2019** **11** property, the attaching creditor can enforce the decree passed in his favour out of the balancing proceeds. That be the legal position, the claim petitioner cannot claim to lift the subsequent court effected on the mortgaged property other than enjoying the first charge created on the said property on the strength of the mortgage created to the property prior to the attachment. That be so, the prayer of the claim petitioner to lift the attachment over the property is liable to be dismissed. This point is answered accordingly. **In the result** , this claim petition is dismissed with an observation that claim petitioner shall have the first charge over the attached property and execution of decree upon this property at the instance of the 1[st] respondent/plaintiff shall be subject to the mortgage liability imposed upon the property at the hands of the claim petitioner. No order as to costs.” ## 7. In **Housing Development Finance and Another v. Sub Registry Officer and Others** reported in **2011 (3) KLJ 561** , this court held thus: “The issue involved in this case is whether the attachment ordered over the property by a Civil Court, much after the creation of the security interest over the same in connection with a loan obtained by the borrower from the first petitioner/Bank, is having any adverse consequence with regard to the rights and liberties of the Bank and the successful bidder - who has satisfied the sale consideration, in the public auction pursuant to the proceedings under the SARFAESI Act (Act in short). 2. The sequence of events as narrated in the writ petition shows that the property in question was given as security by the owner, while availing the loan from the first petitioner/Bank. In view of the **W.A.No.1561 of 2019** **12** continuing defaults, the Bank proceeded with steps issuing Ext.P1 notice under Section 13(2) of the SARFAESI Act, on 10.10.2008. Since there was no response on the part of the defaulter, the Bank filed a petition under Section 14 of the Act, before the Chief Judicial Magistrate's Court, Ernakulam, and as per the order passed therein, an Advocate Commissioner was deputed and the physical possession of the property was taken over. After publishing Ext.P2 notice, Ext.P3 notice was issued, followed by the sale conducted on 24.11.2010. The second petitioner turned to be the successful bidder, who was issued Ext.P4 sale certificate. But when the sale certificate was taken for registration before the first respondent, it was refused to be registered, stating that there were some attachments ordered by the Civil Courts, as conveyed by Ext.P5 dated 10.1.2011 which forms the subject matter of challenge in this writ petition. 3. The first respondent has filed a counter affidavit pointing out that there was no question of refusal to register the documents, but for giving effect to the attachment ordered by competent Civil Courts and that, Ext.P5 memo was issued pointing out the actual facts and figures with utmost bona fides and in good faith. Respondents 4 and 5 have not chosen to file any counter affidavit presumably for the reason that there may not be any dispute with regard to the factual position. 7. After hearing both the sides, this Court finds that there is no dispute with regard to the chronology and the sequence of events, in so far as the specific contention of the petitioners that the mortgage was created in the year 2001 whereas the attachments were ordered by the Civil Court in the years 2007- 09 stands unrebutted. The remedy provided in favour of the secured creditor by virtue of the Act is an independent right, which is not adversely **W.A.No.1561 of 2019** **13** affected in any manner by virtue of any other stipulation contained in any other law as discernible from the statute itself, which contains a non - obstante clause as incorporated under Section 13(1). The only reference made in the said provision is Section 69 or Section 69A of the Transfer of Property Act, 1882, which do not come to the rescue of respondents 4 and 5. This Court finds that the rights and liberties conferred on the creditor/Bank by virtue of mortgage created in the year 2001 and the right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the Civil Courts in 200709. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner. 8. In the above circumstances, the first respondent is directed to register Ext.P4 sale certificate as and when the same is presented, subject to satisfaction of the necessary requirements, if the same is otherwise in order. On registering the sale certificate as above, it goes without saying that the second petitioner will be at liberty to enjoy the property with absolute ownership, exclusive possession and clear and marketable title as conveyed. The second petitioner, as a consequence, is at liberty to remit the basic tax in respect of the property and he is entitled to have a possession certificate in this regard. As such, if any request is made by the second petitioner for accepting the basic tax and for issuance of possession certificate, after effecting transfer of registry as per the Transfer of Registry Rules, 1966, necessary steps shall be taken and the same shall be finalised, by the concerned revenue authorities, as early as possible at any rate, within two weeks thereafter.” ## 8. In **Madhan v. Sub Registrar** reported in **2014 (1) KLT 406** , this court held thus: **W.A.No.1561 of 2019** **14** “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 security for the loan availed. The bank filed O.A. No. 437/2002 in the Debts Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('the Act' for short) for recovery of dues. The Debts Recovery Tribunal passed Ext.P1 final order allowing the bank to recover a sum of Rs.22,18,958.28 with interest thereon till realisation by sale of the property. A recovery certificate was accordingly issued to the Recovery Officer who proceeded to recover the debt in accordance with the provisions of the second schedule to the Income Tax Act, 1961. The provisions of the second schedule to the Income Tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 have been made applicable by virtue of Section 29 of the Act. 3. The Recovery Officer proclaimed the mortgaged property for sale under Rule 52 of the second schedule to the Income Tax Act, 1961 on failure of the certificate debtors to pay the amount even after receipt of demand notice. Ext.P2 sale notice published in the 'Malayala Manorama' Daily fixed the date of sale as 16.07.2009 wherein the petitioner was the highest bidder for a sum of Rs.27,30,000/-. No application was filed by anyone to set aside the sale and the same was accordingly confirmed by Ext.P3 order under Rule 63(1) of the Income-tax (Certificate Proceedings) Rules, 1962. Ext.P4 sale certificate issued to the petitioner was registered as document No. 2415/2009, Sub Registry Office, Kollam on the basis of 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 **W.A.No.1561 of 2019** **15** court. 4. Ext.P7 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 for a declaration that the sale of the property under the Act is free of all encumbrances and that attachments aforesaid does not affect the title of the petitioner. A writ of mandamus is also sought for a direction to the first respondent Sub Registrar and the second respondent Village Officer to remove the entries relating to the encumbrances over the subject property subsequent to the mortgage. Neither the fifth respondent nor respondents 6 to 12 filed any counter affidavit to the writ petition traversing the allegations even though notice was served on them by special messenger. 7. It was observed in Housing Development Finance Corporation Vs. Sub Registry Officer [2011 (3) KLJ 561] arising under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as follows: "This court finds that the rights and liberties conferred on the creditor/bank by virtue of mortgage created in the year 2001 and the right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the civil courts in 2007-2009. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner". **W.A.No.1561 of 2019** **16** A division bench of this court after adverting to the provisions of the Kerala Revenue Recovery Act, 1968 and the CPC observed in Rajalekshmi Amma Vs. Basheer [2013 (4) KLT 443] as follows: "When a mortgage is created in terms of the provisions of the T.P. Act, it amounts to an encumbrance. An order of attachment before judgment creates no charge. x x x x x x x x x x x x x x x xx x x x x x x x x x x x x x x x x x xxx The quality of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment 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 attaches. Injunction granted or attachment ordered or effected in relation to immovable properties will not make the suit one in which any right to immovable property is directly and specifically in issue so as to attract the bar of lis pendens provided in Section 52 of the Transfer of Property Act". (iii) Kolappa Pillai Vs. Sukumaran Nair [1987 (2) KLT SN Case No. 54]: "Section 64 hits only a private transfer or delivery of the property attached or of any interest therein. The passing of a decree by a court of law declaring a charge on such property or the court sale and **W.A.No.1561 of 2019** **17** delivery of the property in execution of such a decree can in no sense be said to be a private transfer or delivery of the property or of any interest therein". (iv) Francis Vs. Navodaya Kuries and Loans Pvt. Ltd. [2010 (3) KLT 609]: "Hence the attachment before judgment though made prior on point of time in O.S. No. 94/1989 ceased to have effect with the court sale in favour of respondent No. 1 (in O.S. No. 1156 of 1991) on 21.12.1995" (v) Kabidi Venku Sah Vs. Syed Abdul Hai and another [AIR 1984 SC 117]: "The attaching creditor can bring the property to sale only subject to the mortgage so long as it is subsisting. That is to say he could bring only the mortgagers equity of redemption to sale if it had not already been extinguished by its sale in execution of any decree obtained on that mortgage." 9. The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the 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 permanent taboo prejudicially affecting the marketability and title **18** ## **W.A.No.1561 of 2019** to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment.” 9. Decisions relied on by the writ court to the facts of the case on hand cannot be said to be erroneous. Though the appellant has assailed the impugned judgment on various grounds, we are not inclined to interfere with the same, as the legal position is well settled. In the light of the above discussion and decisions, instant appeal fails and is accordingly dismissed. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **W.A.No.1561 of 2019** **19** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE-A1**|**TRUE COPY OF THE NOTICE DATED 16.5.2019**| |---|---| ||**ISSUED BY THE 2ND RESPONDENT WITH ENGLISH**| ||**TRANSLATION.**| |**ANNEXURE -A2**|**TRUE COPY OF THE DEMAND NOTICE DATED**| ||**25.5.2019 ISSUED BY THE APPELLANT TO THE**| ||**2ND RESPONDENT.**| |**ANNEXURE-A3**|**TRUE COPY OF THE ENCUMBRANCE CERTIFICATE**| ||**DATED 16.1.2019 WITH ENGLISH TRANSLATION.**| |**ANNEXURE-A4**|**TRUE COPY OF THE SIMPLE MORTGAGE DEED**| ||**NO.34/13 DATED 03.01.2013 OF S.R.O,**| ||**TRIPUNITHURA.**| |**ANNEXURE-A5**|**TRUE COPY OF THE I.A.NO.4115/2017 IN**| ||**O.S.NO.201/2016 FILED BEFORE THE SUB COURT,**| ||**ERNAKULAM.**| |**ANNEXURE A6:**|**TRUE COPY OF THE I.A.NO.5096/2017 IN**| ||**O.S.NO.201/2016 FILED BEFORE THE SUB COURT,**| ||**ERNAKULAM.**| |**ANNEXURE A7:**|**TRUE COPY OF THE ORDER IN I.A.NO.5096/2017**| ||**IN O.S.NO.201/2016 OF THE SUB COURT,**| ||**ERNAKULAM, DATED 5.4.2018.**| |**ANNEXURE A8:**|**TRUE COPY OF THE DECREE IN O.S.NO.201/2016**| ||**OF THE SUB COURT, ERNAKULAM.**| |**ANNEXURE A9:**|**TRUE COPY OF THE JUDGMENT IN O.S.**| ||**NO.201/2016 OF THE SUB COURT, ERNAKULAM.**| /TRUE COPY/ P.A. TO JUDGE