A decree holder's rights can be reconsidered upon new facts, such as settlement agreements affecting existing property attachments under mortgage claims.

JUDGMENT

This original petition is filed by the petitioner/decree holder, for setting aside the order passed by the Sub Court, Kochi, in E.A. No. 149/2022 dated 05.04.2023.

2. Heard the learned counsel for the petitioner and learned counsel for the 2^nd respondent. Counsel for the 1^st respondent remained absent.

3. The case of the petitioner is that the petitioner obtained a decree against the 1^st respondent in E.P. 1/2020 in O.S. No.23 of 2019 from the Sub Court, Kochi, for attaching the movable and immovable property of the 1^st respondent. Accordingly, the properties of the 1^st respondent were attached on the previous occasion. Subsequently, the 2^nd respondent entered appearance by filing the claim petition under order XXI Rule 58 of the Code of Civil Procedure, contending that the properties under attachment are prior mortgages with the banker and borrowing loans from the banker, and they have already filed suit before the Debt Recovery Tribunal and obtained the decree and lifting of the attachment over the immovable property and also filed another IA for removing the movables from the said building. After considering the arguments, the execution court, allowed the IA filed by the 2nd respondent in E.A. No. 81 of 2020 in part, and directed the decree holder to remove the movables and lift the attachment over the immovable property in favour of the 2^nd respondent. Subsequently, the petitioner filed another, E.A.No. 149/2022, seeking to lift the attachment over the said property, on the ground that, if the respondent Nos. 1 and 2 settle their issues on realization of debt by the 2^nd respondent, the petitioner may be permitted to attach the said property. The execution court, by considering the arguments, dismissed the application vide impugned order under challenge. Accordingly, this original petition is filed.

4. The learned counsel for the petitioner also contended that the trial court dismissed the application on the ground that the 2^nd respondent was already a mortgagee, who had a superior mortgage over the property, which was in connection with the Recovery of Debts and Financial Institutions Act , 1993.

5. It is submitted by the learned counsel for the respondent Nos. 1 and 2 that they are likely to settle their issue and 2^nd respondent will realize the money and release the mortgaged property from the mortgager. Such being the case, 1^st respondent may alienate the property. Therefore, it is necessary for the petitioner to attach the said property. But the trial court dismissed the EA, and the execution court dismissed the application on the ground that the petitioner sought only to attach the movables but not for attachment of the immovables, which is not correct, hence he prayed for disposing the petition.

6. The learned counsel for the 2^nd respondent submits that there was a settlement between the 1^st and 2^nd respondents, and the respondent No. 1 was already discharged, and the property attached by them was already encumbered to the 1^st respondent. The learned counsel for the respondent also brought to the notice of this Court to the order passed by the execution court, in which E.A. No. 81/2022 has been challenged before the High Court by filing E.A. No. 9/2022. The Division Bench of the High Court granted 2 months time for removing the movables from the building, and subsequently it was submitted that by order of the High Court dated 03.08.2022. The learned counsel for the 2^nd respondent submits that now they have received the money as the respondent No. 1 cleared the debts and released the mortgaged property. It is submitted that the documents were already handed over to the 1^st respondent