IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 14^TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 WP(C) NO. 29232 OF 2023 PETITIONERS:

1 BANK OF BARODA ROSARB, ERNAKULAM, PALLIMUKKU, M.G.ROAD, ERNAKULAM REPRESENTED BY ITS CHIEF MANAGER MR.SUKLESWAR BASUMATARY, PIN - 682016

2 UDAYAPRAKASH AGED 45 YEARS S/O A. GOPALAKRISHNA, 'SRI SRINGERIMADAM BUILDING STAFF QUARTERS', VTC KALADY P.O., ERNAKULAM DISTRICT, PIN - 683574 BY ADVS.

K.M.ANEESH K.SANTHOSH KUMAR (KALIYANAM)

ADARSH KUMAR BIJU VARGHESE ABRAHAM DILEEP CHANDRAN SHASHANK DEVAN RESPONDENTS:

1 DISTRICT COLLECTOR KASARAGOD, CIVIL STATION, VIDYANAGAR, KASARAGOD, KERALA, PIN -

671123

2 TAHSILDAR HOSDURG TALUK OFFICE, KOCHI - PANVEL HIGHWAY,HOSDURG, KANHANGAD, KERALA, PIN - 671315

3 VILLAGE OFFICER, BARE, BARE P.O., KASARAGOD, PIN - 671319

4 STATE BANK OF INDIA ( ESBT)

UDUMA BRANCH, UDUMA, KASARAGOD., PIN – 671319 BY SR.G.P. SRI.BIMAL K. NATH BY SMT. BINDUMOL JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioners, a Nationalised Bank and its auction purchaser, have approached this Court to declare that revenue recovery attachment referred to in Exts. P3 to P5 made on the property having an extent of 01.62 Ares (4 cents) in Sy. No.353/2A21 of Bare Village, Hosdurg Taluk, Kasaragod District and the residential building thereon, is non-est and does not affect the marketability of the property and to efface the subsequent attachment and to mutate the property.

2. According to the petitioners, one Mrs. Thahira P.A. had availed a housing loan from Uduma Branch of the 1^st petitioner Bank and towards the security for repayment of the said loan, she had on 06.10.2015 created equitable mortgage by deposit of title deed of her property referred to above. Since she defaulted repayment of the loan amount, proceedings under the SARFAESI Act was initiated and the property was sold to the 2^nd petitioner, the successful bidder on 04.05.2023. The 2^nd petitioner had remitted the entire sale amount and Ext.P2 registered sale certificate, as mandated under the SARFAESI Act, was issued to him. However, when the 2^nd petitioner took steps for mutation of the property, respondents 2 and 3 informed that there are revenue recovery attachments over the property based on requisition made by the 4^th respondent, another Nationalised bank, for recovering a loan availed by said Thahira on 06.11.2015 and therefore mutation cannot be effected. Ext. P4 is the requisition for recovery towards Kisan(KCC) loan issued by the 4^th respondent Bank and Ext. P5 is the certificate of attachment dated 29.12.2022 issued by the District Collector. The petitioners contend that the attachment effected subsequent to the equitable mortgage created in favour of the 1^st petitioner Bank will not affect the title and ownership of the 2^nd petitioner over the property auctioned by the 1^st petitioner Bank and such attachments have no impact on the sale conducted by the

1^st petitioner Bank.

3. The learned counsel for the petitioners, relying on the decision of this Court in Madhan S. v. Sub Registrar, Kollam and Others [2014(1) KHC 249: 2014(1) KLT 406: ILR 2014(1) Ker.586: 2014 (1) KLJ 483: AIR 2014 Ker.54] and the decision of the Division Bench in Secretary, Keechery Service Co-operative Bank Ltd. v.Sajitha Nizar alias Sajitha P.M. and Others[2020 (5) KHC 231: ILR 2020 (4) Ker.249: 2020(6) KLT 68: 2020(4) KLJ 970] contends that attachments effected subsequent to the creation of equitable mortgage have to be effaced after the property is purchased by the 2^nd petitioner under the provisions of the SARFAESI Act.

4. The learned Counsel for the 4^th respondent contended that though the attachment entered in Exts. P4 and P5 is subsequent to the equitable mortgage created in favour of the 1^st petitioner, said attachment is prior to the sale conducted on 16.06.2023. The Counsel also contended that the peti