JUDGMENT

Ajithkumar, J.

This is an appeal under Section 104(1) read with Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908.

2. The appellant filed E.A.No.118 of 2018 in E.P.No.30 of 2017 in O.S.No.32 of 2016 before the Sub Court, Ottapalam, seeking to lift the attachment over the petition scheduled property. The E.A. was filled invoking the provision of Order XXI, Rule 58 and Section 151 of the Code, contending that the order of attachment obtained by the 1st respondent in respect of the said property on the ground that he was entitled to realise from the said property the debt due to him from the 2nd respondent in O.S.No.32 of 2016 is not sustainable in law, since the appellant is a secured creditor. The 2nd respondent while availing a cash credit facility of Rs.45,00,000/-, he created an equitable mortgage in favour of the appellant by deposit of title deed. The said loan amount has become a non-performing asset, and therefore, the appellant initiated proceedings against the secured asset as per the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). It is contended that in that circumstance, the court should not have attached the property and the appellant is entitled to get the attachment vacated.

3. The 1st respondent resisted the application by filing an objection. It was contended that the 2nd respondent defaulted the payment of the loan due to the appellant is incorrect. O.S.No.32 of 2016 was filed by him for realisation of the amount legally due to him. It is a bona fide litigation. The attachment of the property in the suit was effected on 28.03.2016. Only on 14.07.2017, the appellant took over possession of the property. The appellant has no absolute title to the property and therefore has no right to object the attachment. Even if the appellant has a right as a secured creditor, the 1st respondent has every right to proceed against the property subject to that right. O.P.No.1034 of 2018 filed by the appellant before this Court claiming the same right was dismissed. Accordingly, the 1st respondent sought to dismiss the application. The 2nd respondent remained ex parte.

4. On 14.02.2019, this appeal was admitted and notice to the respondents were ordered. Further proceedings in the execution petition were stayed initially for a period of one month. The order was extended from time to time and it is still in force.

5. Heard the learned Counsel appearing for the appellant. None of the respondents has turned up.

6. The Execution Court received Exts.A1 to A11 in evidence and after considering the case of either side dismissed the application recording the reasons as follows:

“7. Points 1 & 2:- The petitioner approached this court for lifting the attachment over the schedule property on the ground that the property is mortgaged with the petitioner bank by the 2nd respondent who is the judgment debtor of this case. From the documents and from the case of petitioner it is clear that petitioner is only a mortgagee. The JD is the mortgagor and his right of equity of redemption is there with him. Petitioner being a mortgagee will get 1st charge over the property to realise the mortgage money. What can be sold for realisation of the decree in this case is the right of JD in the property. JD's right to redeem the mortgage is still there. That can be sold for in execution in this case. Even though there is attachment the right of petitioner will not be affected. Moreover as per the 1st respondent the decree holder he is ready to purchase the petition schedule property with the liability towards the petitioner. That is he is ready to purchase the right of the JD to redeem the mortgage. The petitioner has no absolute right over the property. Petitioner's right is only to get the mortgage money and the attachment will not affect the right of petitioner. In the circumstance, there is no need to lift the attachment.”

7. The learned Counsel appearing