Kerala High Court
Nahala vs Adish on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
RP.No.1043 OF 2019 IN OP (FC). 290/2018
AGAINST THE JUDGMENT IN OP (FC) 290/2018(R) OF HIGH COURT OF
KERALA
REVIEW PETITIONER/APPELLANT:
NAHALA, AGED 30 YEARS
D/O. K.T MONUTTY, KOGANAM VEETIL, THERUVATHU HOUSE,
AGANADI, KADAPPURAM P.O, CHAVAKKAD,
THRISSUR DIST 680 506
BY ADVS.
SRI.RENJITH B.MARAR
SRI.SADCHITH.P.KURUP
SMT.LAKSHMI.N.KAIMAL
SMT.SINDHU K.S.
SRI.C.P.ANIL RAJ
RESPONDENTS/RESPONDENTS:
1 ADISH, AGED 32 YEARS
S/O.A BDUL KAREEM, THAIKKULATH VEEDU,
KOORKANCHERRY P.O, THRISSUR 680 007
2 ABDUL KAREEM,AGED 65 YEARS
THALIKKULATH VEEDU, KOORKANCHERRY P.O,
THRISSUR 680 007
3 SHAFEEDA BANU,
AGED 61 YEARS
W/O.A BDUL KAREEM, THALIKKULATH VEEDU,
KOORKANCHERRY P.O, THRISSUR 680 007
4 ASHA, AGED 29 YEARS
D/O. ABDUL KAREEM, THALIKKULATH VEEDU,
KOORKANCHERRY P.O, THRISSUR 680 007
R.P.No.1043/2019 in
O.P.(FC).No.290/2018
2
5 THRISSUR SERVICE CO-OEPRATIVE BANK LTD,
NO. 1097, THIRUVAMBADI P.O, PATTURAIKKAL,
THRISSUR 680 022
REP BY ITS SECRETARY
R1-4 BY ADV. SRI.SAIJO HASSAN
R5 BY ADV. SRI.A.D.RAVINDRA PRASAD
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
07.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
R.P.No.1043/2019 in
O.P.(FC).No.290/2018
3
ORDER
Dated this the 7th day of January 2021
Shaffique, J
This review petition has been filed inter alia contending that
there is error apparent on the face of record. Specific reference has
been made to Section 93 of the Transfer of Property Act which reads as
under:
"93. Prohibition of tacking:- No mortgagee paying off a
prior mortgage, whether with or without notice of an intermediate
mortgage, shall thereby acquire any priority in respect of his
original security; and, except in the case provided for by section
79, no mortgagee making a subsequent advance to the mortgagor,
whether with or without notice of an intermediate mortgage, shall
thereby acquire any priority in respect of his security for such
subsequent advance."
2. The facts involved in the case would disclose that the
petitioner has obtained a decree for recovery of money. The property
was under mortgage with the Thrissur Service Co-operative Bank
Limited. After the decree was passed, continuing guarantees were
executed for the loan availed. This Court has considered the aforesaid
issue at paragraph 11 and has rendered the judgment. Paragraph 11
reads as under:
"11. What Section 64 of CPC invalidates is transfer or
R.P.No.1043/2019 in
O.P.(FC).No.290/2018
delivery of interest in the property after attachment while
the order is in force. In the case of a mortgage created prior
to the attachment for securing payment of future debt or
discharge of a loan transaction, it is by all means a prior
interest saved by Order XXXVIII Rule 10 of the CPC. Section
64 cannot come into play in such a situation and render the
creation of charge void. Mere execution of a loan application
during continuance of the attachment would neither amount
to a transfer nor a delivery of interest in the property.
Execution of continuing guarantee bonds in connection with
availment of subsequent loans also will not be hit by Section
64 of the CPC, since the property had been given as security
much before the order of attachment as proved by
documents on record. On 19.2.2014 and 23.4.2014, there
were, in fact no transfer of the property or interests therein.
Only continuing guarantee bonds were executed in favour of
the claim petitioner in connection with the loans availed on
the said dates. The execution of continuing guarantee
bonds on these dates will have retrospective operation from
Ext.A6 mortgage date viz., 16.1.2012 when the property
was offered as security for the future debts also."
3. Further at paragraph 12 it is held as under:
12. Ext.A6 Gehan/mortgage hypothecation deed dated 16.1.2012 shows
that, the property was offered as security resulting in creation of charge much
before the attachment was ordered by the Family court. Ext.A6 further discloses
that mortgage was intended not only for due repayment of the loan already availed
on the date, but also for all future advances with the Society as per the terms and
conditions in the loan sanctioning order. In other words, the charge created with
respect to the property as on 16.1.2012 continued to be in force all through out,
whenever the loans were subsequently availed by the borrowers. The position
continued to be the same even after the attachment was ordered to be lifted and
R.P.No.1043/2019 in
O.P.(FC).No.290/2018
when it ceased on 29.7.2015. It is in evidence that the original title deed deposited
with the claim petitioner has not been hitherto released to the third judgment
debtor, even though the earliest loan availed for Rs.3 lakh was closed as early as on
24.1.2012. Therefore, the contention of the decree holder that the mortgages
created during subsistence of attachment are void under Section 64 of the CPC,
cannot be accepted. "
4. In fact, the purport of Section 93 of the Transfer of Property
Act was not at all brought to the notice of this Court and there was no
contention urged on that ground. Even otherwise, Section 93 of the
Transfer of Property Act will not come to rescue the petitioner, insofar
as the terms of mortgage itself was created prior to the decree, in
which it was clearly indicated that it was intended to cover the due
repayment of the loan already availed and also future advances issued
by the Society. Such being the terms and conditions in the loan
sanctioning order, the petitioner's contention based on Section 93 is
unsustainable. There is no ground for review.
The review petition is dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
T.V.ANILKUMAR
kp True copy JUDGE
P.A. To Judge
