1. Can the attachments effected subsequent to the creation of equitable mortgage be effaced after the property is purchased by another in sale conducted by the Recovery Officer of the Debts Recovery Tribunal?

2. The fifth respondent had mortgaged his property (3.44 ares in R.S. No. 38/2 and 0.9443 are in R.S. No. 393/3) situated in Kollam west village to the fourth respondent bank ('the bank' for short) as security for the loan availed. The bank filed O.A. No. 437/2002 in the Debts Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('the Act' for short) for recovery of dues. The Debts Recovery Tribunal passed Ext.P1 final order allowing the bank to recover a sum of Rs.22,18,958.28 with interest thereon till realisation by sale of the property. A recovery certificate was accordingly issued to the Recovery Officer who proceeded to recover the debt in accordance with the provisions of the second schedule to the Income Tax Act, 1961. The provisions of the second schedule to the Income Tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 have been made applicable by virtue of Section 29 of the Act.

3. The Recovery Officer proclaimed the mortgaged property for sale under Rule 52 of the second schedule to the Income Tax Act, 1961 on failure of the certificate debtors to pay the amount even after receipt of demand notice. Ext.P2 sale notice published in the 'Malayala Manorama' Daily fixed the date of sale as 16.07.2009 wherein the petitioner was the highest bidder for a sum of Rs.27,30,000/-. No application was filed by anyone to set aside the sale and the same was accordingly confirmed by Ext.P3 order under Rule 63(1) of the Income-tax (Certificate Proceedings) Rules, 1962. Ext.P4 sale certificate issued to the petitioner was registered as document No. 2415/2009, Sub Registry Ofiice, Kollam on the basis of which Ext.P5 order of delivery was issued by the Recovery Officer. Mutation was effected in favour of the petitioner and land tax was also paid for the property evidenced by Ext.P6 receipt which however contained an endorsement by the village officer as to the existence of certain attachments from court.

4. ExtP7 encumbrance certificate obtained by the petitioner reflected that several attachments were made at the instance of respondents 6 to 11 subsequent to the creation of equitable mortgage in favour of the bank on 25.03.2000. The first of such attachments was on 21.10.2000 and the others were on 04.11.2000, 03.11.2001, 15.03.2003 and 22.06.2004 in addition to an attachment made in O.S. No. 193/2001. The Writ Petition has been filed for a declaration that the sale of the property under the Act is free of all encumbrances and that attachments aforesaid does not affect the title of the petitioner. A writ of mandamus is also sought for a direction to the first respondent Sub Registrar and the second respondent Village Officer to remove the entries relating to the encumbrances over the subject property subsequent to the mortgage. Neither the fifth respondent nor respondents 6 to 12 filed any counter affidavit to the writ petition traversing the allegations even though notice was served on them by special messenger.

5. I heard Mr. A.V. Thomas, Senior Advocate on behalf of the petitioner as well as Mr. R.S. Kalkura, Advocate on behalf of the bank in extenso. I also heard Mr. Rafeek V.K., Government Pleader on behalf of the Sub Registrar and Village Officer as well as Mr. P. Parameswaran Nair, Assistant Solicitor General on behalf of the Recovery Officer of the Debts Recovery Tribunal.

6. A brief look at the relevant statutory provisions and the various judicial decisions would throw an insight to the points canvassed by the petitioner and the reliefs sought for in the writ petition. Section 64 of the Code of Civil Procedure, 1908 ('the CPC' for short) reads as under:

“64. Private alienation of property after attachment to be void.-

(1) Where an attachment has been made,