The rights to a mortgaged property under execution proceedings cannot be asserted if a prior attachment exists, as per relevant provisions of the Transfer of Property Act.

Sathish Ninan, J.

The application filed by the appellants, who are third parties to the execution proceedings, seeking declaration of their right over the property being proceeded against in execution, was dismissed by the execution court. The applicants are in appeal.

2. The following facts are admitted by the parties. A decree for money was obtained by the first respondent in this appeal against respondents 2 and 3. The property being proceeded against in execution was attached in the suit on 22.09.2017. Even prior to that a mortgage liability was subsisting over the property, in favour of the Catholic Syrian Bank, Kannur Branch. On 15.11.2017 the suit was decreed on compromise. The decree holder filed EP 31/2019 seeking recovery of the decree debt by sale of the Ex. FA No.22 of 2023 attached property. In execution of the decree the property was sold on 19.07.2022. Prior to the confirmation of sale the appellants-third parties have approached the execution court claiming right over the property.

3. We have heard Sri.P.B.Subramanyan, the learned counsel on behalf of the appellants, and Sri.G.Sreekumar Chelur and Sri.Jagan Abraham M. George, the learned counsel on behalf of the respondents.

4. According to the appellants-applicants, on 27.03.2018 they had redeemed the mortgage over the property from the Catholic Syrian Bank, and had cleared the entire Employees Provident Fund dues on 02.08.2018. The prior mortgage prevails over the subsequent attachment and therefore, title over the property vests with the applicants and not with the 1^st respondent-decree holder/auction purchaser, is the contention.

5. We are unable to agree with the argument of the learned counsel for the appellants-applicants. The applicants have produced documents before this Court to substantiate that they had redeemed the mortgage subsisting over five items of properties belonging to the judgment debtors, including the Ex. FA No.22 of 2023 property in question. They have also produced documents evidencing that they had, after the redemption of the mortgage on 27.03.2018, purchased the property in question from the judgment debtor as per sale deeds dated 13.08.2018 and 17.08.2018. By paying off the amounts due to the Bank under the mortgage the appellants-applicants does not become persons who become subrogated to the rights of the mortgagee. Section 91 of the Transfer of Property Act specifies the persons who are entitled to sue for redeeming a mortgage. S.92 deals with the right of subrogation. It is only the persons specified under , other than the mortgagor, who have redeemed the mortgaged property, will get vested with the right of subrogation. In terms of Section 92 , if any person who has advanced money to the mortgagor for redemption of mortgage is to be entitled for subrogation, there has to be a registered instrument by the mortgagor agreeing to such subrogation.

6. That the appellant did not fall within any of the categories of persons provided under Section 91 of the Transfer of Property Act is not in dispute. There is also no registered instrument by the mortgagor agreeing for subrogation.

Ex. FA No.22 of 2023

7. So also, the fact remains that the property was under attachment since 22.09.2017. Hence the sale deeds by the judgment debtor to the appellants is only subject to attachment. In terms of Section 64 of the Code of Civil Procedure , the sale in favour of the appellants is void as against the claims under the attachment.

8. Therefore, the claim of the appellants that they have right over the property consequent on the payment of mortgage money and having obtained