Subsequent attachments do not affect an equitable mortgagee's rights under the Transfer of Property Act.

1. The petitioner, a Nationalised Bank (hereinafter referred to as the 'Bank'), has approached this Court challenging Ext.P6 order issued by the 1st respondent, Sub Registrar refusing to register Ext.P5 Sale Certificate on the ground that the mortgaged property is having attachment from the Civil Court.

2. The 3rd respondent availed a Cash Credit Loan from the Bank by creating equitable mortgage in respect of an extent of 3 Ares of property by deposit of title deeds. When the 3rd respondent defaulted payment of the instalments, the loan account was classified as Non Performing Asset and Bank initiated proceedings under the SARFAESI Act. The secured asset was sold in auction pursuant to Ext.P4 sale notice and Ext.P5 Sale Certificate was issued to the successful bidder. When Ext.P5 sale certificate was presented for registration, the 1st respondent refused to register the same on the ground that the property is having attachments from the Civil Court. Ext.P7 Encumbrance Certificate shows that the mortgaged property has been attached by the Sub Court, Kottarakkara in O.S. No. 36/2020 on 27.10.2020 in favour of the 4th respondent, who is the plaintiff in the said suit. It is further submitted that the Suit itself was rejected by the Court on 24.05.2022 for non payment of Court fee and the order of attachment ceased to exist. It is submitted by the Bank that the equitable mortgage was created on 17.01.2014 as evident from Ext.P1 memorandum of deposit and the date of attachment by the Court is on 27.10.2020. The petitioner contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of the Bank to sell the mortgaged property and the 1st respondent is bound to register the sale certificate.

3. The learned counsel for the petitioner relies on the decision of this Court in Rajalekshmi Amma v. E.A.Basheer & Others 2013 KHC 3678 : 2013 (4) KLT 443 : ILR 2013 (4) Ker. 385 : 2013 (4) KLJ 754, 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. 541 and the decision of a Division Bench of this Court in Secretary, Keechery Service Cooperative 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] and contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of the Bank to sell the mortgaged property and the 2nd respondent Village Officer has to efface the attachment from the revenue records.

4. Though notice was issued to respondents 3 & 4 by special messenger, there is no appearance for them when the case is taken up for consideration.

5. This Court, in Rajalekshmi Amma [supra], held as follows:

"3. When a mortgage is created in terms of the provisions of the TP Act, it amounts to an encumbrance. An order of attachment before judgment creates no charge. There is nothing in the RR Act or in the SFC Act, which changes the jurisprudential content of a mortgage, in terms of the TP Act when the provisions of either of those legislations are invoked by the KFC. Equally, the quality of the mortgage created in favour of the KFC does not, in any manner, get extinguished or reduced in terms of its legal character and statutory potency in terms of the TP Act, by the fact that alternate modes of recovery were resorted to by KFC, rather than by a suit in terms of S.67 of the TP Act. The quality of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment by the civil court under Code of Civil Procedure. That order of attachment does not override or deserves to be preferred over the rights of a mortgagee or the effect of the mortgage as a