The court upheld the principle that prior mortgage rights prevail over subsequent attachments of property, maintaining the validity of sales conducted before said attachments.

JUDGMENT

These appeals and the writ petition raise a common question and hence considered and disposed of by this common judgment.

2. The facts are not under serious dispute.

Three suits O.S No.287/2018, O.S No.353/2018 and O.S No.354/2018 were instituted by the appellant, claiming various amounts under a chit. In these suits, orders of attachments were obtained on 01.03.2018 in O.S No.287/2018 and 16.03.2018 in both O.S No.353/2018 and O.S No.354/2018. O.S No.287/2018 was decreed on 21.12.2019, O.S No.353/2018 was decreed on 30.01.2019 and O.S No.354/2018 was decreed on 05.12.2019. For execution of decree, execution petitions were filed. Pending the execution petitions, the 1^st respondent-Bank in the execution second appeal preferred a claim petition under Order 21 Rule 58 of the Code of Civil Procedure , 1908, claiming a prior charge over the property by virtue of a registered Gehan dated 16.08.2011. The appellant-Bank contended that ARC No.61/2013 and ARC No.62/2013 were lodged for the purpose of recovery and based on the Award, the property was sold on 24.11.2017 and however, the same was confirmed only on 06.02.2020, because of the litigation initiated by the borrower in W.P.(C) No.21502/2017. Before the Execution Court, the claim petition converted to an application under Section 96 of the . The Execution Court by the order impugned in these appeals, held that the remedy of the decree holder is to challenge the proceedings initiated under the Kerala Co-operative Societies Act , 1969, and in the absence of any challenge, the claim petitioner has to succeed. Accordingly, allowed the claim petition. Aggrieved, the appellant preferred appeals as A.S No.14/2022, A.S No.15/2022 and A.S No.16/2022 before the Sub Court, Chavakkad, which was dismissed on 25.03.2024. Hence these appeals.

3. On 14.10.2024, while admitting these appeals, this Court framed the substantial questions of law as follows:-

(1) Is it permissible to limit the scope of enquiry in a claim petition to vacate the attachment by amending the cause title of the petition substituting the petition under Order XXI Rule 58 to a petition under Sections 94 and 151 of the Code of Civil Procedure ?

(2) Whether the trial court is bound to consider the alleged illegality committed in the sale proceedings under the provisions of Kerala Co-operative Societies Act in view of Order XXI Rule 58(2) of the Code Civil Procedure barring a separate suit?

4. In the meantime, W.P.(C) No.35099/2022 was also instituted by the appellant, presumably based on the observation made by the executing court while allowing the claim petition that the remedy of the decree holder was to challenge the sale. Therefore, sale is challenged on the ground that going by the valuation taken by the Bank at the time of execution of the Gehan, the property was valued at Rs.1,05,00,000/-, whereas the property was sold only for Rs.63,95,000/- thereby the rights of the decree holder are affected.

5. Heard Shri.Santhosh P. Poduval the learned counsel appearing for the appellant, Adv.Nisha George, the learned counsel appearing for the 1^st respondent in the appeals and Shri.K.Denny Devassy, the Senior Government Pleader, appearing on behalf of respondents 1 and 3 in W.P.(C) No.35099/2022.

6. Shri.Santhosh P. Poduval, the learned counsel appearing for the appellant / decree holder with reference to the contentions in the appeals as well as the writ petition contended that application under Section 94 of Code of Civil Procedure was not maintainable and therefore the courts below could not have allowed the same. There was no consideration on the claim of the appellant on merits and the appell