Attachment before judgment does not affect an existing mortgage made prior to such attachment and disputes should be resolved in civil court.

JUDGMENT :

1. Respondent Nos.4 and 5 availed credit facilities from the petitioner bank. On default being committed, proceedings were initiated by the bank against respondent Nos.4 and 5 and Awards were obtained, determining the liability of respondent Nos. 4 and 5. The 6th respondent had filed O.S. No.104 of 2017 on the file of the Subordinate Judge’s Court, Chavakkad against the 5^th respondent and obtained a decree. The property mortgaged by the 5^th respondent for availing the loan from the petitioner bank had been attached before judgment. The petitioner is before this Court being aggrieved by the fact that when the petitioner approached the 1^st respondent for issuance of sale certificate, the 1st respondent has passed Exhibit P18 order, calling upon the petitioner to get the attachment obtained by the 6^th respondent lifted and to produce fresh encumbrance certificate, for the purposes of issuing the sale certificate.

2. Learned counsel appearing for the petitioner vehemently submits that the attachment before judgment obtained by the 6^th respondent is, admittedly, after the date of mortgage and the mortgage cannot be affected in any manner by the subsequent attachment. It is submitted that, the bank has superior charge over the property. It is submitted that, this Court in judgment dated 15.06.2023 in W.P.(C) No. 7590 of 2023, has considered a similar question and has held that where the attachment from the civil court is after the date of mortgage, the mortgage cannot be affected in any manner.

3. Learned counsel appearing for the 6^th respondent would submit that the writ petition is essentially one seeking for the lifting of attachment or for the effacement of attachment obtained by the 6^th respondent and this is not permissible in the light of the law laid down by the judgment of the Full Bench of this Court in Fathima V. Canara Bank , Palakkad; 2025 KHC OnLine 521. It is submitted that, if the petitioner is in any manner aggrieved by the attachment obtained by the 6^th respondent or if it has a case that the attachment cannot affect the mortgage, it has to approach the Subordinate Judge’s Court, Chavakkad and cannot obtain orders for effacement of attachment by approaching this Court in a writ petition under Article 226 of the Constitution of India. It is also submitted that an execution petition is pending before the Subordinate Judge’s Court, Thrissur for executing the judgment in O.S. No.104 of 2017. It is also submitted that, by mortgaging the same property, both respondent Nos.4 and 5 were given loans by the petitioner bank.

4. Learned counsel appearing for the petitioner bank would submit that the properties offered as security by respondent Nos.4 and 5 are different and the proceedings initiated by the 6^th respondent is only in respect of the property belonging to the 5^th respondent.

5. Having heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 6^th respondent and the learned Government Pleader appearing for the official respondents, I am of the view that the learned counsel appearing for the 6^th respondent is right in contending on the strength of the Full Bench judgment in Fathima (Supra) that the attachment obtained by the 6^th respondent over the property mortgaged by the 5^th respondent for obtaining loan from the petitioner bank, can be lifted and the encumbrance (on account of attachment) effaced from the revenue records only on the application made by the petitioner before the competent civil court and the petitioner is not entitled to such reliefs by filing a writ petition before this Court. However, since the issuance of the sale certificate by itself will not affect encumbrance on account of th