Basheer, J:

This bunch of 5 cases – 2 Writ appeals and 3 original petitions – has thrown up an important question for our consideration. Since the parties and issues involved are the same, we are disposing of these cases by this common judgment.

2. Can the State claim precedence or primacy for its debts over the claims of a secured creditor? To be a little more specific- Can the State enforce a statutory first charge on the property of a debtor, in preference to an existing mortgage in favour of a secured creditor?

3. A brief reference to some of the essential facts is necessary to answer the above question.

4. M/s. Thomas Stephen & Company, Kolllam (hereinafter referred to as “the Company) which was engaged in the manufacture and sale of roofing tiles, bricks etc. had availed of various loans from Canara Bank at Thamarakkulam (for short, the Bank). The Company had furnished sufficient security for repayment of the debt, in addition to creating mortgage by deposit of title deeds of certain items of immovable property as a continuing collateral security. The mortgage was created, initially, on July 9, 1974 which was renewed from time to time. Since the Company defaulted in repayment of the loan, the Bank instituted a suit for recovery of money before the Subordinate Judge’s Court, Kollam. Later the suit was transferred to the Debt Recovery Tribunal at Ernakulam (for short, the Tribunal). By judgment dated February 17, 2000, the Tribunal directed the Company to pay the plaintiff/bank a sum of Rs.41,25,451.64 together with interest at the rate of 15% per annum from August 24, 1992. It was held that the plaintiff/Bank was entitled to realize the decree debt by sale of the mortgaged/ hypothecated o properties.

5. On October 4, 2002 the Recovery Officer of the Tribunal issued a proclamation for sale of two items of the mortgaged properties in execution of the decree in favour of the Bank. The sale was held on January 31, 2003. One Aahammed koya (hereinafter referred to as ‘the auction purchaser) was the successful bidder in respect of item No.1. The bid amount of Rs.60,60,010/= offered by the auction purchaser for the above property having an extent of 40 cents with buildings therein was accepted. The Recovery officer issued a certificate of sale and an order of confirmation in favour of the auction purchaser on June 19, 2003. According to the auction purchaser, he was put in “actual physical possession” of only 31.50 cents of land along with the building therein on June 30, 2003. the reaming 8.50 cents and the building therein were not delivered to him on that day, since one Sri. Sherry Jacob (the licensee for short) was stated to be in occupation of the said land and building on the strength of an agreement for sale between him and the Company.

6. But it appears that long prior to the sale mentioned above, the Tahsildar (Revenue Recovery), Kollam had issued a notice on July 18, 2000 under Section 36 of the Kerala Revenue Recovery Act 1890 (for short, the R.R. Act), attaching the said property belonging to the Company. This order of attachment was issued since the Company had allegedly committed default in payment of sales tax arrears to the tune of Rs.33,04,577/= for the assessment years 1974-75 to 1997-98. Subsequently on February 13, 2001, the Tahsildar issued a notice under Section 49(2) of the RR Act for sale of the above immovable property belonging to the Company to recover a total sum of Rs.8,133,381/=. The sale was scheduled to be held on March 17, 2001.

7. It was at this juncture that the Bank filled the present Original Petition voz., O.P.No.8845/2001 praying for issuance of a writ of certiorari to quash the sale notice issued by the Tahsildar under the R.R. Act. A learned single Judge before whom this Original Petition came up for consideration issued an order of interim stay of all further proceedings pursuant to the sale notice. The above order was passed by the learned single Judge on March 15,2001. The said o