An important question of law arises for decision in this revision petition as to whether the abkari arrears due from a person who had suffered a mortgage decree in another suit is public revenue due on land as defined in Sections 2(a) and 2(j) of the Kerala revenue Recovery Act. If so, whether such arrears shall be the first change on the mortgage property under Section 3 of the Act. In other words, can the state’s right to realize abkari arrears could, take precedence over the Bank’s right to enforce its security, the bank being a secured creditor. What is the impact of Section 2(a) read with Section 3 of the said Act and whether the said provisions gives a statutory recognition to the doctrine of the State’s priority for recovery of abkari arrears is the crux of the dispute.

2. The state of Kerala represented by the District Collector, Ernakulam and the Tahsildar Muvattupuzha are the revision petitioners. The order passed by the Subcourt Muvatupuzha dated 23.2005 in E.A. 578/1996 in E.P 122/1993 in O.S. 469/1985 is under challenge. The said E.A. was filed by the revision petitioners for a declaration that the property put to sale in execution belongs to the State of Kerala and therefore not liabe to be sold in the execution proceedings. The prayer was declined by the court and hence this revision.

3. The decree holder/plaintiff namely Bank of India, Pandappilly Branch filed O.S. No. 469/1985 before the Sub Court, Muvattupuzha for realization of money against the defendants. A decree was passed in favour of the decree holder-Bank. The decree holder-Bank filed E.P 122/1993 in O.s. 469/1985 for realisation of the decree amount by sale of the property which is mortgaged in their favour. According to the State of Kerala which is not a party to suit, the mortgaged property put to sale in execution of the decree in O.S. 469/1985 is under the state’s custody and possession pursuant to a revenue recovery proceedings initiated against the 1st judgment debtor/1st defendant who is a defaulter of Abkari Arrears and therefore the State is entitled to the declaration prayed for in

E.A. 578/1996.

4. The properties sought to be sold in execution were mortgaged to the decree holder Bank on 19.3.1983 and the bank obtained a decree on 28.1987 charging these properties. The 1st judgment debtor in the suit is the defaulter of Abkari arrears under Today workers welfare fund. The District Collector, Ernakulam issued a certificate under Section 69(3) of the Kerala Revenue Recovery Act, 1968 (hereinafter referred to as the R.R. Act) to realize a sum of Rs.4,54,488/- with future interest on account of the aforesaid arrears which the 1st defendant is liable to pay in respect of toddy shop nos.26 and 37 of Muvattupuzha range during the period 1982-93. For realization of the aforesaid arrears, an extent of 2.29 acres of land in Survey No.708/3-1, 708/1-2 and 708/3-3 of Arakkuzha village belonging to the 1st judgment debtor was attached on 28.3.1984 and notice of attachment was served upon the 1st judgment debtor on 18.4.1984 and the property was notified for sale. The property was proposed to be sold on 29.1986. Finding that there was no bidders to participate in the auction, the sale was adjourned to 210.1986 and then to 211.1986. Excluding

19 Cents as homestead and road portion, the remaining 2.10 acres was bid in favour of the Government for 10 paise on 211.1986. The sale was confirmed on 2.1987 after dismissal of the appeal filed by the defaulter. The land was taken into custody by the Government on 3.1987. The defaulter filed O.S. No.112/1990 before the Sub court which was dismissed on 28.6.1993. The appeal filed as A.S. 237/1993 was also dismissed against which the defaulter filed Second Appeal No.400/1995 before this Court. By judgment dated 18.2003 this Court in the said Second Appeal held that the proclamation of sale published by the State was not conducted in accordance with law, and therefore, the sale was set aside. This Court furt