O R D E R

[Order of the Court was made by The Hon'ble CHIEF JUSTICE]

The third respondent is the borrower of the petitioner (creditor).

The account of the third respondent was declared as non-performing asset. The petitioner exercised his right under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter, referred to as “the Act, 2002”).

2. By issuing a notice under Section 13(2) of the Act, 2002, on

01.08.2020, symbolic possession of the property was taken under Section 13(4) of the Act, 2002, on 15.10.2020. The petitioner, thereafter, resorted to the sale of the property by auction. The said property was purchased by the fifth respondent and a sale certificate was issued to him on 08.12.2022. However, the Sub Registrar refused to register the sale certificate purportedly, on the ground that there is an order of attachment by the Civil Court on 13.12.2016. The order of attachment was pursuant to the execution proceedings filed by the fourth respondent for execution of the award passed by the Arbitrator.

3. The action of the Sub Registrar in refusing to register the sale certificate has propelled the petitioner to file the present writ petition.

4. We have heard the learned counsel on either side.

5. Learned counsel for the petitioner submits that under Section

26-E of the Act, 2002, the petitioner being a secured-creditor has a priority of charge. The attachment of the property, which was mortgaged in favour of the secured-creditor much prior in point of time, would not affect the rights of the petitioner.

6. To buttress his submissions, learned counsel for the petitioner relies on the following Judgments:

(i) City Union Bank Limited vs. Sub Registrar, reported in (2018) 5 ALT 279 (DB);

(ii) Unreported Judgment of the High Court of Kerala, dated 04.06.2020 in W.A.No.634 of 2020 (Secretary, Keechery Service Co-operative Bank Ltd., vs.

Sajitha Nizar alias Sajitha.P.M.);

(iii) Unreported decision of the High Court for the State of Telangana, dated W.P.No.500 of 2020 (The Karur Vysya Bank Limited vs. The State of Telangana, represented by its Principal Secretary, Stamps and Registration Department); and (iv) Unreported decision of the High Court of Kerala, dated

02.12.2022 in W.P.(C) No.37558 of 2022 (The South Indian Bank Limited, vs. Sub Registrar and others);

7. Learned counsel appearing for the fourth respondent, in whose favour the award is passed by the Arbitrator and the order of attachment is issued in execution of the award, contends that the attachment of the property by the Civil Court is prior in point of time. On the date, the property was attached, the petitioner had not initiated any proceedings. Already, the fourth respondent has an award in his favour. The award is akin to a decree. In view of that, the fourth respondent has a right to proceed ahead with the property.

8. We have considered the submissions canvassed by the learned counsel appearing for the respective parties.

9. The order of attachment in execution of an award certainly would be resorting to Order XXI Rule 54 of the Code of Civil Procedure. The genesis of Order XXI Rule 54 C.P.C., would lie in Section 60 of C.P.C.

10. After the property is attached, Section 64 of C.P.C. bars any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.

11. Section 64 of C.P.C. bars private transfer. The transfer in the present case is an involuntary transfer. It is the secured-creditor, who has exercised its right under the Special Act viz., the Act 2002.

12. Section 26-E of the Act, 2002 starts with a non obstante clause.

Section 26-E of the Act, 2002 provides that notwithstanding anything contained in any other law for the time being in force, after the registration of the security interest, the debts due to